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What Are Health Care Powers of Attorney For? Health Care!

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Health care powers

Health care powers of attorney are for making health care decisions. That seemingly obvious idea was just confirmed by the Arizona Court of Appeals, which sided with a widow trying to sue a care facility.

The case, Heaphy v. Willow Canyon Healthcare, Inc., centers on a contract that Shirley Heaphy, as heath-care agent for her husband, Charles. She signed on Charles’ behalf to admit him to a facility for rehabilitation and skilled nursing. The forms included an option for arbitration. Such a provision waives a person’s right to file a lawsuit in favor of a less formal process. The result can mean disputes are resolved faster with less expense. Such provisions in care contacts have been controversial. Many believe big businesses can have an advantage over ordinary people. They were once common, then banned, and now are permissible but can’t be mandatory.

Death Leads to Lawsuit

Charles died just a few weeks after entering the facility. Shirley, as the personal representative of his estate, sued Willow Canyon, the corporate owner of the facility, and a doctor. She alleged elder abuse, negligence, negligent hiring and supervision, and wrongful death. Willow Canyon, one of 250+ businesses affiliated with an even larger company called the Ensign Group, argued that it had to go to arbitration.

The trial court concluded no. The reason? The health care powers Shirley held as agent did not authorize her to agree to arbitration.

Willow Canyon appealed.

Agreements Require Authority

The Court of Appeals sided with Shirley. The ruling cites Arizona’s statute for health care powers of attorney: “An agent’s authority to make health care decisions on behalf of a principal is limited only by the express language of the health care power of attorney.” The justices examined the HPOA document and concluded that “the HPOA did not authorize Shirley to enter into the Agreement.”

The decision does suggest that if the arbitration provision had been mandatory, Shirley might have lost. Her powers included the authority to take any action necessary to authorize admission into a facility. If an arbitration agreement was necessary to get Charles care, she had the authority. But because it  was optional, it was not a health care decision.

The ruling officially clarifies the issue following several “unpublished,” or unofficial, opinions. An earlier case ended with an opposite ending. In Ruesga v. Kindred Nursing Centers, LLC, the Court determined that a wife did have the authority to sign such an agreement. In Ruesga, however, the issue was the wife’s general status as agent, not the authority granted under a power of attorney document.

Understanding Health Care Powers

What does this mean for the rest of us? A couple of things:

  • It’s important to read health care power of attorney documents–both those you executed and those that name you as agent. Understand the scope of the authority.
  • In either case, if the principal has capacity, consider changes, such as explicitly including or excluding the power to agree to arbitration.
  • As agent, consider whether you are acting within your powers when you make decisions. If you don’t have the power as health care agent, the financial agent probably does. And that may be you, too.
  • As for arbitration, consider explicitly opting out. Shirley Heaphy spent a long two years fighting for her lawsuit to move forward. Clarity would have helped.
  • Understand that facilities are likely to scrutinize health care POA documents more closely. They may insist on inspecting the document, They might require additional signatures if the authority is not clear. That may cause delays and frustration at what is usually an emotional time.

Care homes can take a relatively relaxed approach to health care agents and their powers. The Heaphy ruling should force facilities and agents alike to pay more attention to health care powers — and the limitations thereof. That should have been happening all along.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.