March 16, 2007

Healthcare Power of Attorney form can create unintended consequences.

Posted in Incapacity planning, Litigation at 8:56 am

A recent California court decision illustrates the importance of reading carefully and paying attention, even when signing apparently harmless documents.

In Hogan v. Country Villa Health Services, a California appellate court enforced an arbitration clause in admission documents for a skilled nursing facility, signed by an elderly woman’s daughter upon admission. When the elderly woman later died while a patient of the skilled nursing facility, her family wanted to sue for wrongful death, eder abuse, and violation of patient rights.

The skilled nursing facility asked the court to rule that the family was forced to bring their elder abuse claim before an arbitrator instead of to a jury, because of the documents signed at the time of admission. The family argued that, even though the daughter had a statutory Heathcare Power of Attorney form signed by her mother, the mother had not authorized the daughter to waive her right to a jury trial in a real courtroom.

The Appeals Court held that the California statutory Advance Health Care Directive form (see Probate Code section 4701), as it was signed by the mother, was sufficient to give the daughter the power to agree to the arbitration agreement.

The unfortunate result is that the elder abuse claim will not be heard in a public forum – even though it’s likely that neither the mother nor the daughter had any idea that was a potential outcome when they signed the documents.

This is an important reminder to always read what you sign – and that it’s helpful to get assistance from someone who can advise you about unexpected consequences, such as the waiver of the right to a trial – because sometimes simple forms have complicated, unintended consequences.

January 15, 2006

California tweaks state Health Care Directive Registry

Posted in Incapacity planning, Legislation at 2:48 pm

AB 1676, passed during the 2005 Legislative session, makes further changes to California’s little-known Healthcare Directive Registry. California law allows registration of an Advance Health Care Directive with the Secretary of State; the new legislation directs the Secretary of State to work with the Attorney General and the Department of Health Services to develop written information about Advance Health Care Directives, and to make that information available on the websites of the Secretary of State, the Department of Health Services, the Attorney General, the Department of Managed Health Care, the Department of Insurance, the Board of Registered Nursing, and the Medical Board of California.