Lp Radcliff, LLC D/B/A Signature Healthcare of North Hardin Rehab and Wellness Center v. Ernest Simcoe

RENDERED: APRIL 26, 2024; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0726-MR

LP RADCLIFF, LLC D/B/A
SIGNATURE HEALTHCARE OF
NORTH HARDIN REHAB AND
WELLNESS CENTER; ASBR
HOLDINGS, LLC; JJLA, LLC; LAS
PALMAS SNF, LLC; LP MANAGER,
LLC; LPMM, INC.; LPSNF, LLC; SHC
LP HOLDINGS, LLC; SIGNATURE
CLINICAL CONSULTING
SERVICES, LLC N/K/A SIGNATURE
HEALTHCARE CLINICAL
CONSULTING SERVICES, LLC;
SIGNATURE CONSULTING
SERVICES, LLC N/K/A SIGNATURE
HEALTHCARE CONSULTING
SERVICES, LLC; AND SIGNATURE
HEALTHCARE, LLC APPELLANTS

APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE LARRY ASHLOCK, JUDGE
ACTION NO. 23-CI-00245

ERNEST SIMCOE; ARNP DENISE
BARNES; ARNP KRISTA LANHAM;
BAPTIST HEALTHCARE SYSTEM,
INC. D/B/A BAPTIST HEALTH
HARDIN; BERCHAUN NICHOLLS,
M.D.; CHRISTOPHER KOEBELE,
M.D.; ELIZABETHTOWN
EMERGENCY PHYSICIANS, LLC;
JULIE LANCASTER AS POWER OF
ATTORNEY AND NEXT FRIEND OF
ERNEST SIMCOE; LEON BUTLER,
JR., M.D.; PHARMERICA
CORPORATION OF AMERICA D/B/A
PHARMERICA AND PHARMERICA
HOLDINGS, INC.; PHARMERICA
DRUGS SYSTEMS, LLC; AND
SABRA HEALTHCARE REIT, INC. APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, ECKERLE, AND MCNEILL, JUDGES.

CALDWELL, JUDGE: Nearly five years ago, we recognized that “[t]he issue of

whether an attorney-in-fact had authority to enter into an arbitration agreement

upon admission of a principal to a nursing home has been a recurring issue.”

GGNSC Frankfort, LLC v. Richardson, 581 S.W.3d 590, 592 (Ky. App. 2019).

This appeal again presents that vexing issue. Here, the Hardin Circuit Court

concluded a power-of-attorney (“POA”) executed by Ernest Simcoe did not give

his daughter and attorney-in-fact, Julie Lancaster, the ability to sign an optional

arbitration agreement on Simcoe’s behalf upon his admission to a nursing home.

We agree and so affirm.

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 RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The essential facts are undisputed. In 1998, Simcoe executed a

durable POA which appointed Lancaster as his attorney-in-fact. Among the

relevant provisions of that POA are clauses allowing Lancaster:

2. To demand, sue for, collect, recover and receive all
debts, monies, interest and demands whatsoever now due
or that may hereafter be or become due to me [Simcoe]
(including the right to institute legal proceedings
therefore) . . . .

10. To act as my agent to make health care decisions for
me if and when I am unable to make my own health care
decisions . . . . My agents [sic] also have the authority to
talk with health care personnel, get information, and sign
forms necessary to carry out those decisions.

11. To do and perform all acts necessary or incidental to
the carrying out of the powers conferred . . . .

12. I [Simcoe] hereby further grant unto my said
attorney in fact full power in and concerning the above
premises and to do any and all acts as set forth above as
fully as I could do if I were personally present . . . .

In 2020, Simcoe entered a nursing home facility, LP Radcliff, d/b/a

Signature HealthCARE at North Hardin Rehab & Wellness Center (“Signature”).

At or near the time Simcoe entered Signature, Lancaster signed an optional

arbitration agreement. In other words, Simcoe was not required to assent to the

arbitration agreement to reside at, or receive care from, Signature.

The arbitration agreement provides in relevant part:

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 The parties . . . agree to resolve each dispute on an
individual basis, as follows:

- We will first try and resolve the dispute
informally between ourselves.

- If we do not succeed, we will mediate the
dispute.

- If mediation is not successful, we will arbitrate
the dispute . . . .

The arbitrator will be a neutral person who will
decide our dispute, and who we agree . . . [w]ill decide
all questions about this agreement, including, but not
limited to, whether the person(s) signing it has proper
authority and whether it is enforceable . . . . THIS
MEANS THAT NO ONE WILL FILE A LAWSUIT
AGAINST THE OTHER, AND THAT EACH
PARTY IS GIVING UP, OR WAIVING, THE
RIGHT TO FILE A LAWSUIT AND HAVE A
JUDGE OR A JURY DECIDE THE DISPUTE
AND/OR ANY ISSUES ABOUT THIS
AGREEMENT. This also means we agree to
completely avoid the court system and that we do not
want a judge or jury deciding any part of our dispute
(except for motions to compel arbitration and any appeals
or appellate proceedings therefrom).

(Emphasis original.)

In 2023, Simcoe, individually, and Lancaster, as Simcoe’s attorney-in-

fact (collectively “Plaintiffs”), filed a complaint in the Hardin Circuit Court against

Signature and its related corporate entities (collectively “Signature”), as well as a

hospital and various other medical providers (who are not active participants in this

appeal). The complaint generally alleged Simcoe had been improperly medicated.

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 Signature filed a motion to compel arbitration, which Plaintiffs

opposed. The trial court denied the motion to compel, its order holding in relevant

part “the language of the POA [is] insufficiently broad to grant Lancaster [the]

power to bind Simcoe to the arbitration agreement.” Signature then filed this

appeal. See KRS1 417.220(1)(a).

ANALYSIS

Preliminary Matters

We have carefully considered the parties’ briefs. Any argument

contained therein not discussed in this opinion lacks relevance, is redundant or is

otherwise unnecessary to analyze and to resolve properly the limited issues before

us. Also, because there is sufficient published Kentucky authority to resolve this

appeal, we decline to address unpublished opinions cited by the parties or opinions

from any federal court except the United States Supreme Court. And we may

affirm for any reason supported by the record, even if our reasoning does not track

precisely that used by the trial court. Mark D. Dean, P.S.C. v. Commonwealth

Bank & Tr. Co., 434 S.W.3d 489, 496 (Ky. 2014).

Standards of Review

Our Supreme Court has held that:

The standard of review of a trial court’s ruling on a
motion to compel arbitration is a de novo determination

1
Kentucky Revised Statutes.

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 of whether the trial judge erred when deciding a factual
or legal issue. Energy Home, Div. of S. Energy Homes,
Inc. v. Peay, 406 S.W.3d 828, 833 (Ky. 2013); see Ping
v. Beverly Enters., Inc., 376 S.W.3d 581, 590 (Ky. 2012).
In Ping, we stated “a party seeking to compel arbitration
has the initial burden of establishing the existence of a
valid agreement to arbitrate.” Id. (citing First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 115 S. Ct. 1920,
131 L. Ed. 2d 985, (1995); Louisville Peterbilt, Inc. v.
Cox, 132 S.W.3d 850, 857 (Ky. 2004)). Once prima
facie evidence of the agreement has been presented, the
heavy burden of avoiding the agreement shifts to the
other party. Louisville Peterbilt, 132 S.W.3d at 857.
Factual findings of the trial court are reviewed under the
clearly erroneous standard and are deemed conclusive if
supported by substantial evidence.

Green v. Frazier, 655 S.W.3d 340, 345 (Ky. 2022). The trial court did not make

factual findings and the relevant facts appear undisputed, so our review is de novo.

We Decline to Conduct an Unrequested Palpable Error Review of Whether a
Court or the Arbitrator Determines Arbitrability Here

Before we may scrutinize the POA to assess whether it gave Lancaster

the ability to sign an arbitration agreement on Simcoe’s behalf, we must address

Signature’s antecedent argument that an arbitrator must decide the issue of whether

these disputes are subject to arbitration – i.e., the issue of arbitrability. Parties may

delegate arbitrability to an arbitrator. See Ally Align Health, Inc. v. Signature

Advantage, LLC, 574 S.W.3d 753, 756 (Ky. 2019). And the arbitration agreement

here provides in relevant part that an arbitrator “[w]ill decide all questions about

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this agreement, including, but not limited to, whether the person(s) signing it has

proper authority and whether it is enforceable.”

But Signature has not shown where it preserved this argument for our

review.2 RAP3 32(4) requires the argument section of an Appellant’s opening brief

to contain “at the beginning of the argument a statement with reference to the

record showing whether the issue was properly preserved for review and, if so, in

what manner.” Signature’s brief does not contain preservation statements for some

arguments, though it is obvious that Signature sought to compel arbitration.

However, it is not obvious that Signature specifically argued in the trial court that

the arbitrator had the sole ability to resolve arbitrability issues.

We decline to meticulously examine the multi-volume record to

ascertain preservation of this issue. “It is not the function or responsibility of this

court to scour the record on appeal to ensure that an issue has been preserved.”

Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019). Instead, “[i]f a party

fails to inform the appellate court of where in the record his issue is preserved, the

appellate court can treat that issue as unpreserved.” Ford v. Commonwealth, 628

2
Signature’s failure to provide a preservation statement was not discussed in the parties’ briefs.
But that curious silence is not determinative. “Because preservation determines the appropriate
standard of review, an appellate court should determine for itself whether an issue is properly
preserved. We are not bound by the view of the parties.” Gasaway v. Commonwealth, 671
S.W.3d 298, 311 (Ky. 2023).
3
Kentucky Rules of Appellate Procedure.

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S.W.3d 147, 155 (Ky. 2021). We therefore regard the arbitrability arguments as

unpreserved. Consequently, Signature is entitled to relief if it can satisfy the

strenuous palpable error standard, by which a party may receive relief for an

unpreserved issue only if its “substantial rights” were affected by an error so

egregious that it caused a “manifest injustice . . . .” CR4 61.02.

However, palpable error review is a matter of grace, not as of right.

See, e.g., Brank v. Commonwealth, 566 S.W.3d 560, 566 (Ky. App. 2018)

(“Whether to undertake palpable error review is within the sole discretion of the

appellate court.”). And appellate courts typically only conduct a palpable error

review upon request. See, e.g., Shepherd v. Commonwealth, 251 S.W.3d 309, 316

(Ky. 2008). Signature has not made such a request.

In sum, Signature’s brief fails to contain a preservation statement

regarding its arbitrability arguments. Therefore, we deem those arguments

unpreserved, so Signature would be entitled to relief only upon a showing that any

error is a manifest injustice. We are initially skeptical that Signature has shown an

error so egregious that it leaps off the page and cries out for relief – the baseline

showing a party must make for an error to be palpable. See, e.g., Johnson v.

Commonwealth, 676 S.W.3d 405, 417 (Ky. 2023). However, under these facts, we

respectfully decline to conduct a sua sponte palpable error review of Signature’s

4
Kentucky Rules of Civil Procedure.

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arbitrability arguments. We strongly caution counsel to scrutinize RAP closely

and to follow its requirements scrupulously in all future cases.

Ping Applies Despite Recent Legislation

The lodestar Kentucky precedent regarding the authority of an

attorney-in-fact to sign an arbitration agreement on behalf of a principal is Ping,

which has been cited over 200 times. In Ping, our Supreme Court held that

“arbitration agreements are enforced no less rigorously than are other contracts and

according to the same standards and principles.” 376 S.W.3d at 589. The Court

noted the then-current POA statute did “not address what authority may be

granted” to an attorney-in-fact, so “[t]he scope of that authority is thus left to the

principal to declare, and generally that declaration must be express.” Id. at 592.

Thus, “an agent’s authority under a power of attorney is to be construed with

reference to the types of transaction expressly authorized in the document and

subject always to the agent’s duty to act with the utmost good faith.” Id. (internal

quotation marks and citation omitted).

In short, a court must closely scrutinize the POA to determine if it

vested the attorney-in-fact with the ability to sign an arbitration agreement on

behalf of a principal. That laborious, time-consuming process has led to a plethora

of extremely fact-specific appellate court decisions. However, Ping remains the

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POA and arbitration lodestar. See, e.g., LP Louisville East, LLC v. Patton, 651

S.W.3d 759, 770 (Ky. 2020) (“Thus, we find Ping’s guidance dispositive . . . .”).

But Signature contends Ping was superseded by legislation which

took effect in 2020. Specifically, instead of Ping, Signature argues this case is

governed by KRS 457.350, which provides in relevant part that “[u]nless the

power of attorney otherwise provides, language in a power of attorney granting

general authority with respect to claims and litigation authorizes the agent to . . .

[s]ubmit to alternative dispute resolution . . . .” Thus, under KRS 457.350, Ping’s

focus on whether a POA includes language granting the agent the express authority

to sign an optional arbitration agreement is seemingly inverted so that the agent

inherently possesses that authority by virtue of having been granted general

authority regarding litigation unless the POA expressly excludes it.

The parties vigorously dispute whether KRS 457.350 applies to this

POA, which was executed over twenty years before the statute took effect, because

Kentucky “adhere[s] to a strong general presumption against retroactive

application of statutes absent a clear expression of such intent within the statute

. . . .” City of Villa Hills v. Kentucky Retirement Systems, 628 S.W.3d 94, 104 (Ky.

2021). Accord KRS 446.080(3) (“No statute shall be construed to be retroactive,

unless expressly so declared.”). Signature contends KRS 457.350 applies to

Simcoe’s POA because KRS 457.460(1) (as amended in 2020) provides that KRS

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Chapter 457 “applies to a power of attorney created before, on, or after July 15,

2020 . . . .”

KRS 457.350 has the potential to alter how courts analyze the abilities

of attorneys-in-fact to bind their principals to arbitration agreements. But we

conclude KRS 457.350 does not apply here because the POA did not grant

Lancaster “general authority with respect to claims and litigation . . . .”

What constitutes “general authority” is not defined in KRS Chapter

457. However, the term general authority has “acquired a peculiar and appropriate

meaning in the law,” so KRS 446.080(4) requires us to construe the term according

to that specialized meaning. Specifically, general authority means “[a] general

agent’s authority, intended to apply to all matters arising in the course of the

principal’s business.” BLACK’S LAW DICTIONARY (11th ed. 2019) (defining

general authority as a discrete term within the definition of authority). Thus, we

must determine whether the POA at issue provides Lancaster with authority over

“all matters” pertaining to litigation involving Simcoe. It does not.

The POA grants Simcoe the ability to “demand, sue for, collect,

recover and receive all debts, monies, interest and demands whatsoever now due or

that may hereafter be or become due to me (including the right to institute legal

proceedings therefore).” But our Supreme Court has explicitly rejected a claim

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that a strikingly similar clause in a POA authorized the attorney-in-fact to sign an

arbitration agreement on behalf of the principal:

Turning now to our interpretation of the Wellner
POA’s specific language, we note again that Kindred
relied upon [the following] provision[] of the Wellner
POA as authority for Beverly Wellner’s execution of
Kindred’s pre-dispute arbitration agreement: 1) the
power “to demand, sue for, collect, recover and receive
all debts, monies, interest and demands whatsoever now
due or that may hereafter be or become due to me
(including the right to institute legal proceedings
therefor)” . . . .

The act that required supporting authorization was her
[the agent’s] execution of the pre-dispute arbitration
agreement in the context of admitting him [the principal]
to a nursing home. That act was in no way connected to
the pursuit of any claim of [the principal] . . . . [T]he act
of executing a pre-dispute arbitration agreement upon
admission to a nursing home had nothing at all to do with
“demand[ing], su[ing] for, collect[ing], recover[ing] and
receiv[ing] all . . . demands whatsoever” and
“institut[ing] legal proceedings,” and even settling
existing claims by arbitration or litigation . . . .

Kindred Nursing Centers Limited Partnership v. Wellner, 533 S.W.3d 189, 193-95

(Ky. 2017) (footnote omitted). We must follow Wellner. SCR5 1.030(8)(a).

Our conclusion that this POA did not provide Lancaster with “general

authority” over litigation pertaining to Simcoe is perhaps best shown by listing

examples of POAs which unmistakably give an attorney-in-fact “general authority”

5
Rules of the Kentucky Supreme Court.

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over his or her principal’s litigation affairs. For example, the sample POA

provided by the General Assembly in KRS 457.420 contains a section titled

“GRANT OF GENERAL AUTHORITY[,]” within which is a space for the

granting principal to check a box indicating the attorney-in-fact has “general

authority” regarding “Claims and Litigation[.]” Similarly, a template for a durable

POA contained in a treatise on wills and trusts in Kentucky contains a clause

sweepingly authorizing the attorney-in-fact:

To institute, prosecute, defend, abandon, compromise,
arbitrate, settle and dispose of any claim in favor of or
against me or any property interests of mine; to collect
[a] receipt for any claim or settlement proceeds and
waive or release all rights of mine; to employ attorneys
and others and enter into contingency agreements and
other contracts as necessary in connection with litigation;
and, in general, to exercise all powers with respect to
claims and litigation which I could if present and under
no disability.

L. RUSH HUNT & LARA RAE HUNT, BALDWIN’S KY. WILLS AND TRUSTS § 16:3

(May 2023 Update).

We also reject Signature’s argument that the POA granted Lancaster

the authority to agree to arbitration on Simcoe’s behalf by virtue of KRS

457.245(3), which was also enacted in 2020. That statute provides in relevant part

that “if a power of attorney grants to an agent authority to do all acts that a

principal could do, the agent has the general authority described in KRS 457.270 to

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457.390.” We shall discuss the residual powers clauses of Simcoe’s POA again

later in this Opinion, but they are not as broad as Signature asserts.

Instead, the POA grants Lancaster the authority to “do and perform all

acts necessary or incidental to the carrying out of the powers conferred” and to

have “full power in and concerning the above premises and to do any and all acts

as set forth above as fully as I could do if I were personally present . . . .” The

residual powers given to Lancaster pertained only to “carrying out the powers

conferred” or “set forth above” in the POA. In other words, the POA provides

Lancaster only with the residual authority to perform all acts incidental or

necessary to carrying out the powers contained elsewhere in the agreement; the

POA does not sweepingly provide Lancaster with carte blanche to “do all acts that

a principal could do.”

By contrast, we held that a POA which granted an attorney-in-fact the

unfettered power to “generally do and perform for [the principal] all that [the

principal] may do if acting in [the principal’s] own person” was sufficient to permit

the attorney-in-fact to sign an arbitration agreement on behalf of the principal in

Richardson, 581 S.W.3d at 594. In short, because the POA here does not give

Lancaster the “authority to do all acts that a principal could do,” KRS 457.245(3)

is inapplicable, regardless of whether it applies retroactively.

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 Distilled simply, Simcoe did not provide Lancaster with “general

authority” over all of Simcoe’s litigation matters. Therefore, KRS 457.350 does

not apply, regardless of its retroactivity.

Examination of the POA

We now must scrutinize the POA under the principles of Ping and its

progeny to determine whether the document contains language authorizing

Lancaster to sign an optional arbitration agreement on Simcoe’s behalf. We agree

with the trial court that it does not.

Three sections of the POA are at issue: a litigation clause, a healthcare

decision-making clause and a residual powers clause. As to the litigation clause,

we are mainly guided by our Supreme Court’s analysis of a strikingly similar

clause in Wellner, supra. In Wellner, the POA granted the attorney-in-fact “1) the

power ‘to demand, sue for, collect, recover and receive all debts, monies, interest

and demands whatsoever now due or that may hereafter be or become due to me

[the principal] (including the right to institute legal proceedings therefor)’ . . . .”

Wellner, 533 S.W.3d at 193. The litigation authority section of the POA at hand is

fundamentally identical.

Our Supreme Court held “the act of executing a pre-dispute arbitration

agreement upon admission to a nursing home had nothing at all to do with

demand[ing], su[ing] for, collect[ing], recover[ing] and receiv[ing] all . . . demands

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whatsoever and institut[ing] legal proceedings, and even settling existing claims by

arbitration or litigation.” Id. at 193-94 (internal quotation marks and citation

omitted). Instead, the ‘“act’ that required authorization was signing an agreement

which makes no reference at all to [the principal’s] property and instead pertains

exclusively to his constitutional rights.” Id. at 193. Accord Extendicare Homes,

Inc. v. Whisman, 478 S.W.3d 306, 323-24 (Ky. 2015), overruled on other grounds

by Kindred Nursing Centers Ltd. Partnership v. Clark, 581 U.S. 246, 137 S. Ct.

1421, 197 L. Ed. 2d 806 (2017):

Extendicare’s position is that the “institute or defend
suits” language of the Adams/Whisman POA is a general
authorization for engaging in litigation, which implicitly
provides the authority to do whatever is incidental to the
suit or reasonably necessary to achieve the purpose of the
litigation . . . . However, we cannot rationally say that
signing an arbitration agreement was “incidental to” a
claim concerning Adams’ property rights when the
specific right, to which the claim is allegedly
“incidental,” did not exist. An act cannot be “incidental”
to something that does not exist or has not happened. An
arbitration agreement signed before a cause of action
exists cannot be “reasonably necessary” to the resolution
of that cause. Whisman’s execution of the arbitration
agreement was not “incidental” to or “reasonably
necessary” in the furtherance of any claim at all
concerning Adams’ property rights.

We are bound by Wellner.

As such, we must reject Signature’s argument that it is irrelevant that

the arbitration agreement here was signed prior to the existence of any dispute

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between Simcoe and Signature. To the contrary, the signing of an arbitration

agreement prior to the eruption of a dispute is a linchpin of Wellner. In fact, the

Court specifically held that POA would have authorized the attorney-in-fact to

submit an already pending dispute to arbitration but did not authorize the agent to

agree to arbitrate disputes which had not yet arisen. Wellner, 533 S.W.3d at 193.

Indistinguishable POAs must be construed indistinguishably.

Therefore, it is plain that the “demand and sue” clause of the POA at hand did not

authorize Lancaster to sign an optional, pre-dispute arbitration contract for Simcoe.

Turning to the healthcare clause, the POA authorized Lancaster to

“act as [Simcoe’s] agent to make health care decisions for me if and when I am

unable to make my own health care decisions.” The POA also authorized

Lancaster to “sign forms necessary to carry out those decisions.” Id.

First, it is unclear whether Simcoe was unable to make his own

healthcare decisions. Second, our Supreme Court has held that signing an optional

arbitration agreement is not a healthcare decision. Ping, 376 S.W.3d at 593;

Patton, 651 S.W.3d at 769. Third, Lancaster was only authorized to sign forms

“necessary to carry out those [healthcare] decisions[,]” but the arbitration

agreement was not necessary since it was wholly optional. The healthcare

decision-making powers granted to Lancaster did not authorize her to sign an

optional, pre-dispute arbitration agreement on Simcoe’s behalf.

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 Patton, supra, relied upon by Signature, is materially distinguishable

because the arbitration agreement in that case was mandatory. 651 S.W.3d at 762.

Our Supreme Court emphasized the distinction between an attorney-in-fact’s

authorization to sign a mandatory arbitration agreement versus an optional one:

Because Tommy granted his agent all powers as
are necessary or desirable to provide for his care, which
would encompass Tommy’s admission into a nursing
home when he was no longer able to physically care for
himself, and because Signature required a facility
resident or his agent to agree to arbitration of future
disputes, we are presented with a circumstance different
from, but acknowledged in, Ping. Here, in accordance
with Ping and its expressed principles of agency, we
apply the rule that when an agreement to arbitrate is
presented as a condition of admission to a nursing home,
unless otherwise agreed, a power of attorney expressing
general authority to make necessary health care decisions
includes the incidental or reasonably necessary authority
to enter that agreement. In light of Kenneth’s authority
to sign a necessary, non-optional arbitration agreement in
order to obtain Tommy’s admittance into Signature’s
facility, we must conclude the Arbitration Agreement is
valid and enforceable. Thus, we find Ping’s guidance
dispositive of this issue, albeit not in Kenneth’s favor.

Patton, 651 S.W.3d at 770 (emphasis in original).

Finally, we reject Signature’s arguments that the POA’s residual

powers clause authorized Lancaster to sign the optional arbitration agreement on

Simcoe’s behalf. Specifically, sections eleven and twelve of the POA provide in

relevant part that Lancaster had the authority “[t]o do and perform all acts

necessary or incidental to the carrying out of the powers conferred” and “to do

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any and all acts as set forth above as fully as I [Simcoe] could do if I were

personally present . . . .” (emphasis added). Contrary to Signature’s arguments,

those clauses expressly authorized Lancaster to only perform acts necessary or

incidental to the “powers conferred” or “set forth” elsewhere in the POA. As we

have discussed, the remainder of the POA did not confer upon Lancaster the power

to sign an arbitration agreement on Simcoe’s behalf. Moreover, the ability to sign

an arbitration agreement was not “set forth above” in the residual powers clauses.

Other cases cited by Signature are distinguishable. For example, we

held that a POA which gave the attorney-in-fact the vast authority to “generally do

and perform for [the principal] all that I may do if acting in my own person” was

sufficient to allow the attorney-in-fact to sign an optional arbitration agreement on

behalf of the principal. Richardson, 581 S.W.3d at 591 (bold and all caps omitted).

The POA at hand does not contain similarly sweeping language.

“Regardless of the nature of the power conferred, POAs will be given

a strict and narrow interpretation.” Golden Gate National Senior Care, LLC v.

Dolan, 579 S.W.3d 874, 879 (Ky. App. 2019). Here, “[t]he express grant of

authority and the express limitations on that authority renders the . . . POA

insufficiently broad to confer the power on [Lancaster] to bind [Simcoe] to an

[optional, pre-dispute] arbitration agreement.” Id. at 880. Therefore, the trial court

correctly denied Signature’s motion to compel arbitration.

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 CONCLUSION

For the foregoing reasons, the Hardin Circuit Court is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:

A. Pete Pullen Edmund J. Benson
Shem D. Beard Stephen F. Soltis
Louisville, Kentucky Lexington, Kentucky

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