The Intersection of Agency Doctrine and Elder Law: Attorney-in-Fact Authority to Arbitrate Nursing Home Claims

28 Pages Posted: 5 Jun 2016

See all articles by Thomas Simmons

Thomas Simmons

University of South Dakota Knudson School of Law

Date Written: 2015

Abstract

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of an agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent’s authority. The remaining powers should be construed and mapped according to the language in the power of attorney instrument with reference to longstanding principles of agency law. This article critiques and explains the evolution of this branch of agency law, with a special focus on the power of agents to enter into arbitration agreements on their principals’ behalf in view of the 2015 Kentucky Supreme Court decision, Extendicare Homes, Inc. v. Whisman.

Keywords: Agency, Arbitration, Powers of Attorney, Elder Law, Nursing Homes

JEL Classification: K39

Suggested Citation

Simmons, Thomas, The Intersection of Agency Doctrine and Elder Law: Attorney-in-Fact Authority to Arbitrate Nursing Home Claims (2015). 49 John Marshall Law Review 39 (2015), Available at SSRN: https://ssrn.com/abstract=2788809

Thomas Simmons (Contact Author)

University of South Dakota Knudson School of Law ( email )

414 E. Clark Street
Law School suite 212
Vermillion, SD 57069
United States
605.658.3533 (Phone)
605.677.5417 (Fax)

HOME PAGE: http://www.usd.edu/faculty-and-staff/Tom-E-Simmons

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