The Georgia Supreme Court has held that an arbitration clause signed by the decedent (or by a person having power-of-attorney for the decedent) in a nursing home case is enforceable and requires the decedent's wrongful-death beneficiaries to arbitrate their claims, United Health Services v. Norton, S16G1143 (3/6/17). The Court of Appeals had held otherwise, 336 Ga. App. 51, 55 (Ga. App. 2016) and got reversed. The Supreme Court reasoned that a wrongful death action is a derivative claim and is subject to any defenses that would have been good against the decedent.
Arbitration clauses, governed by the Federal Arbitration Act, are common in the admissions paperwork at nursing homes, often signed without question by the patient or the person holding a power of attorney for the patient.
In the Norton case a person with a power of attorney signed the admitting papers for the patient, including an arbitration clause with the following language:
“This Agreement shall inure to the benefit of and bind the Patient/Resident and the Healthcare Center, their successors, assigns, and intended and incidental beneficiaries.... The term “Patient/Resident” shall include the Patient/Resident, his or her guardian, attorney-in-fact, agent, sponsor, representative, or any person whose claim is derived through or on behalf of the Patient/Resident, including, in addition to those already listed in this Paragraph, any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.”
Patients and family are typically not thinking of bringing wrongful death lawsuits against the nursing they are trusting to provide care, but the nursing homes are, and the Supreme Court has now held that the clause was binding on the deceased’s family members. Arbitration is an expensive and burdensome process that can now supersede the constitutional right to trial by jury.
Any lawyers who prepare powers of attorney and/or advance directives should consider including the following language (or something similar) to sidestep this unfortunate ruling:
Not withstanding any other provision of this Power of Attorney, my Agent does not have the authority to waive my right to a jury trial or my right to assert in any forum any claim I may have or a claim that may relate to me, such as a claim for personal injury or wrongful death. My Agent has no authority to enter into any agreement under which I am required to enter arbitration or any other proceeding, binding or otherwise.