                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT MEMPHIS
                                   January 22, 2008 Session

     DWIGHT BARBEE, as Administrator of the Estate of Faye Glenn
                                     v.
        KINDRED HEALTHCARE OPERATING, INC.; KINDRED
      HEALTHCARE, INC.; KINDRED NURSING CENTERS EAST,
        LLC; KINDRED HOSPITALS LIMITED PARTNERSHIP;
       KINDRED NURSING CENTERS LIMITED PARTNERSHIP
   d/b/a RIPLEY HEALTHCARE AND REHABILITATION CENTER;
       NELLIE WILSON, in her capacity as Administrator of Ripley
 Healthcare and Rehabilitation Center; N. JEANNETTE McKINION, in her
 capacity as Administrator of Ripley Healthcare and Rehabilitation Center;
   and JONATHAN OWENS, in his capacity as Administrator of Ripley
                  Healthcare and Rehabilitation Center

                    Appeal from the Circuit Court for Lauderdale County
                        No. R.D. 5978 Joseph H. Walker, III, Judge


                   No. W2007-00517-COA-R3-CV - Filed October 20, 2008


        This is a nursing home negligence case involving an arbitration agreement. The son of the
decedent signed documents admitting his mother to the defendant nursing home. The admission
documents included an arbitration agreement. After his mother’s death, the son filed a lawsuit on
behalf of her estate against the defendant nursing home, alleging, inter alia, neglect and abuse. The
nursing home filed a motion to dismiss the lawsuit and compel arbitration under the agreement. The
trial court granted the motion, finding that the agreement was not unconscionable and that the son
had apparent authority to sign the agreement in view of his mother’s incompetence and the exigent
circumstances. The mother’s estate appeals. We find on appeal that the son was not his mother’s
agent and did not have apparent authority to sign on her behalf. Applying the Tennessee Health Care
Decisions Act, we find further that the son was not his mother’s surrogate, and that he did not have
authority to bind her to the arbitration agreement. Therefore, we reverse the order compelling
arbitration.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed
                                      and Remanded

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which, ALAN E. HIGHERS, P.J., W.S.,
joined; W. FRANK CRAWFORD , J., did not participate.
Susan Nichols Estes, Deborah Truby Riordan, Cameron C. Jehl, Little Rock, AR; Brian G. Brooks,
Greenbrier, AR, for the Appellant.

W. Lee Maddux and T. Ryan Malone, Chattanooga, TN, for the Appellees.

                                            OPINION

                               FACTS AND PROCEDURAL HISTORY

        In the spring of 2004, Faye Glenn (“Decedent”) lived alone in Ripley, Tennessee. Her only
child, son Dwight Barbee (“Barbee”), lived in Memphis, and assisted his mother with financial
matters by paying her bills and handling other transactions. Plaintiff/Appellant Barbee did not have
a power of attorney or other written authorization from his mother to act on her behalf.

       In June 2004, the Decedent was diagnosed with colon cancer and underwent colon surgery
in Memphis. She did not fare well after her surgery, and her health care providers recommended that
the Decedent be admitted to a nursing home. On July 8, 2004, the Decedent was admitted to
Defendant/Appellee Ripley Healthcare and Rehabilitation Center (“Ripley”) in Lauderdale County,
Tennessee, operated by Defendant/Appellees Kindred Healthcare Operating, Inc., Kindred
Healthcare, Inc., Kindred Nursing Center East, LLC, and Kindred Hospitals Limited Partnership.

       The 42-page Resident Admissions Agreement (“Agreement”) admitting the Decedent into
Ripley was executed by Barbee on July 8, 2004. Part of the overall Agreement executed by Barbee
was an eight-page Alternative Dispute resolution Agreement (“Arbitration Agreement”) in which
Barbee, on the Decedent’s behalf, agreed to have all disputes arising out of the Decedent’s stay at
Ripley submitted to binding arbitration, and waiving the Decedent’s right to a jury trial. The
Arbitration Agreement had a separate signature page, executed by Barbee, which included the
following paragraph:

                 IV. RESIDENT’S UNDERSTANDING OF AGREEMENT

                The Resident understands that (A) he/she has the right to seek legal counsel
       concerning this Agreement, (B) the execution of this Agreement is not a precondition
       to the furnishing of services to the Resident by the Facility, and (C) this Arbitration
       Agreement may be revoked by written notice to the Facility from the Resident within
       thirty (30) days of signature. If not revoked within thirty (30) days, this Agreement
       shall remain in effect for all care and services rendered at the Facility, even if such
       care and services are rendered following the Resident’s discharge and readmission
       to the Facility. (D) Nothing in this Agreement shall prevent Resident or any other
       person from reporting alleged violations of law to the appropriate administrative,
       regulatory or law enforcement agency. The Resident, or his or her designated legal
       representative, also had the opportunity to consult with the Facility representative
       regarding such explanations or clarification.


                                                -2-
       The Decedent remained a resident at Ripley until October 3, 2004, during which time she
suffered from a variety of injuries and ailments. The Decedent died on October 7, 2004. After the
Decedent’s death, Barbee became the administrator of her estate (“Estate”).

        On June 28, 2005, the Estate filed this lawsuit in the trial court below against the companies
that owned and operated Ripley, namely, Kindred Healthcare Operating, Inc.; Kindred Healthcare,
Inc.; Kindred Nursing Center East, LLC; Kindred Hospitals Limited Partnership; Kindred Nursing
Centers Limited Partnership d/b/a Ripley Healthcare and Rehabilitation Center; and Nellie Wilson,
in her capacity as Administrator of Ripley Healthcare and Rehabilitation Center. On October 6,
2005, the Estate filed an amended complaint adding two additional defendants: N. Jeannette
McKinion, in her capacity as Administrator of Ripley Healthcare and Rehabilitation Center, and
Jonathan Owens, in his capacity as Administrator of Ripley Healthcare and Rehabilitation Center
(collectively, “Kindred” or “Kindred Defendants”). The Complaint alleged that Ripley and the
Kindred Defendants negligently breached their duty to ensure that the Decedent received appropriate
care and supervision, violated the Tennessee Adult Protection Act,1 committed medical malpractice,
and breached their contractual duties, resulting in injuries and pain and suffering to the Decedent,
and ultimately resulting in her wrongful death. The complaint alleged that, at all times during her
residence from July 8, 2004 through October 3, 2004, the Decedent was “of unsound mind” within
the meaning of Tennessee Code Annotated § 28-1-106, which provides for the tolling of the statute
of limitations for persons who are “of unsound mind.” T.C.A. § 28-1-106 (2000). The Estate sought
both compensatory and punitive damages, and a trial by jury. Discovery ensued.

        In August 2005, the Kindred Defendants filed a motion to dismiss, or, in the alternative, for
summary judgment and to stay all proceedings, including discovery. A subsequent, identical motion
was filed in November 2005, after the Estate filed an amended Complaint. Both motions filed by
the Kindred Defendants sought to enforce the Arbitration Agreement executed by Barbee in
connection with the Decedent’s admission to Ripley.

        In September 2005, the Estate filed a response to the Kindred Defendants’ motion. In its
response, the Estate denied the existence of a valid arbitration agreement and asked that discovery
relating to the issues of the Kindred Defendants’ motion be completed before the trial court made
a decision on the motion. In October 2005, the trial court entered an agreed order permitting
arbitration-related discovery.

         After the arbitration-related discovery had been completed, the trial court held a hearing on
the Kindred Defendants’ motions on September 18, 2006. Although there was no testimony at the
hearing, discovery such as depositions and interrogatory responses were included in the file before
the trial court. The trial judge heard and considered the arguments of counsel.

       At the hearing, it was undisputed that the Decedent had not executed any written document,
such as a power of attorney, authorizing Barbee to act on her behalf. Barbee had never received


       1
           T.C.A. § 71-6-101 et seq. (2004 & Supp. 2007).

                                                 -3-
authorization from any court, as in a conservatorship or a guardianship. In support of the motions,
the Kindred Defendants argued that Barbee had apparent authority to act as the Decedent’s agent,
noting that he was her only child and had handled many of her financial obligations, and had her
admitted to the hospital prior to her residency at Ripley. They also contended that there were
“exigent circumstances,” such as the Decedent’s inability to handle her own affairs, that gave Barbee
the apparent authority to execute the nursing home admission documents on behalf of the Decedent,
including the Arbitration Agreement. The Kindred Defendants maintained that the Arbitration
Agreement was not unconscionable; it bound both parties equally, it stated clearly that it did not have
to be signed in order for the Decedent to be admitted, and it included a clause saying that it could
be revoked within thirty days of execution. Therefore, they argued, the Estate’s complaint should
be dismissed and its claims arbitrated.

        The Estate argued that there were no exigent circumstances, as execution of the Arbitration
Agreement was not necessary for the Decedent to be admitted to Ripley. It noted that the Kindred
Defendants had the burden of showing that the Arbitration Agreement was executed by a person with
authority to act on the Decedent’s behalf, and maintained that such authority had not been shown.
The fact that Barbee had in the past taken actions such as handling the Decedent’s financial matters
did not matter because apparent authority had to stem from actions of the principal that cloaked the
person in question with apparent authority. The Decedent, the Estate argued, had not done so and
could not have done so because she was incompetent at the time she was admitted. Thus, the Estate
contended, the Arbitration Agreement should not be enforced. The trial court took the matter under
advisement.

      On January 26, 2007, the trial court entered an Order dismissing the Estate’s complaint, and
compelling the parties to arbitration under the Arbitration Agreement. The Order provides:

               Mr. Barbee filed suit against defendants in June 2005. Defendants filed a
       motion to dismiss/summary judgment alleging the claim is subject to the Agreement
       requiring mediation. If mediation is unsuccessful, the Agreement requires
       arbitration. The defendants therefore allege the suit should be dismissed.
               Plaintiff asserts that the Agreement is unenforceable. Plaintiff alleges the
       signatory lacked requisite authority; that the Agreement is illegal and unconscionable.
                                                 ***
               Under this Agreement, the services are not offered on a “take it or leave it”
       basis, without affording the consumer a realistic opportunity to bargain and under
       such conditions that the consumer cannot obtain the desired product or service except
       by acquiescing to the form of the contract. The provisions expressly state that
       services do not depend on signing, and gives the signor thirty days to revoke the
       agreement.
               The signing of the Agreement was not a condition precedent to the admission
       of Ms. Glenn. She was already in the facility before Mr. Barbee signed the
       Agreement. The Agreement provides a realistic opportunity to withdraw from the
       provisions.


                                                 -4-
               The Court finds that Mr. Barbee had a choice of whether to sign the
       Agreement. The terms of the Agreement apply to both parties. Mr. Barbee had
       meaningful choice, and the contract terms are not unreasonably harsh. The Court
       finds that the Agreement was neither procedurally nor substantively unconscionable.
               Signatures: Mr. Barbee asserts he had no express authority to sign for his
       mother. At issue is whether the defendants can rely upon the concept of apparent
       authority.
               The facts established that he was her only child and sole heir. He already had
       a deed to her house, which had been placed in his name. He was on her checking and
       savings accounts. He wrote checks and paid the bills at times.
               The evidence reflects that Ms. Glenn did not have her mental faculties, and
       was not in a position to indicate whether she assented to the terms of these contract
       provisions. She was not entirely aware of the pending transfer from the hospital to
       nursing home, and Mr. Barbee was unsure whether she understood she was being
       placed into a nursing home at the time of admission.
               Mr. Barbee had signed his mother into the hospital in Ripley and the hospital
       in Memphis. He signed all relevant admission papers at both of those service
       providers, and for her admission to the defendant facilities.
               The Court finds that exigent circumstances required Mr. Barbee to act for his
       mother. She could not act in her own behalf, and could not make decisions. She
       could not handle her financial affairs, and he had taken over all her business
       decisions. He had control over her property and accounts. Mr. Barbee had apparent
       authority to act in her behalf, and defendants were justified in relying on his signing
       the Agreement. As his mother’s sole heir, he is the only person affected by his
       signing for his mother. He is bound by his own signature in that respect.
                                                ***
               The Court therefore grants the Motion of defendants dismissing the action
       and compel[s] the parties to submit to the alternate dispute resolution in accordance
       with the terms of the Agreement.

Thus, the trial court concluded that “exigent circumstances” vested Barbee with apparent authority
to execute the Arbitration Agreement on his mother’s behalf, and that the Arbitration Agreement was
not unconscionable. Consequently, the trial court’s order compelled arbitration. From this order,
the Estate now appeals.

                        ISSUES ON APPEAL AND STANDARD OF REVIEW

       On appeal, the Estate raises five issues:

               1. Whether the trial court erred in finding the Decedent to be
               incompetent when no medical evidence to support that finding was
               presented.



                                                   -5-
               2. Whether the trial court erred in finding that exigent circumstances
               vested in Barbee apparent authority to bind his mother to the
               Arbitration Agreement, when the Arbitration Agreement was not
               required for his mother’s admission to Ripley and he had not
               previously exercised similar authority.
               3. Whether the trial court erred in finding that the Arbitration
               Agreement was not unconscionable.
               4. Whether the trial court erred in finding that the Kindred Defendants
               did not breach their fiduciary duty to the Decedent.
               5. Whether the failure of essential terms, here, the designation of the
               arbitral forum and rules of procedure, prevents the Arbitration
               Agreement from being enforceable.

         Here, the Kindred Defendants sought enforcement of the Arbitration Agreement by a motion
for summary judgment, asking for dismissal of the complaint. The trial court considered not only
the pleadings, but also the depositions and other discovery in dismissing the action and compelling
arbitration. The fact that the trial court considered matters outside the scope of the pleadings did
“not convert the motion to compel arbitration into a motion for summary judgment.” Raines v. Nat’l
Heath Corp., No. M2006-1280-COA-R3-CV, 2007 WL 4322063, at *4 (Tenn. Ct. App. Dec. 6,
2007). “[A] proper motion to compel arbitration is not even a true motion to dismiss.” Id. (citing
Thompson v. Terminix Int’l Co., No. M2005-02708-COA-R3-CV, 2006 WL 2380598, at *3 (Tenn.
Ct. App. Aug. 16, 2006)). “The correct procedure to be followed by the trial court upon a motion
to compel arbitration, therefore, is, if it determines the matter is subject to arbitration, to enter an
order compelling arbitration of that matter and staying the matter.” Id. (quoting Thompson, 2006
WL 2380598, at *3). We review the enforcement of an arbitration agreement de novo. Rosenberg
v. BlueCross BlueShield of Tenn., Inc., 219 S.W.3d 892, 903 (Tenn. Ct. App. 2006) (citing Cooper
v. MRM Inv. Co., 367 F.3d 493, 497 (6th Cir. 2004)). A presumption of correctness is afforded to
the trial court’s findings of fact, unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d); T.R. Mills Contractors, Inc. v. WRH Enter., LLC, 93 S.W.3d 861, 864 (Tenn. Ct. App.
2002). However, there is no presumption of correctness afforded to a trial court’s conclusions of
law. T.R. Mills Contractors, Inc., 93 S.W.3d at 864 (citations omitted).

                                              ANALYSIS

                                      Decedent’s Competence

          We consider first the Estate’s argument that the trial court erroneously found that the
Decedent was incompetent to execute Ripley’s admission documents, including the Arbitration
Agreement, at the time she was admitted. As noted above, to support its finding of “exigent
circumstances,” the trial court found that the Decedent “did not have her mental faculties” and “was
not in a position to indicate whether she assented to the terms of these contract provisions.” It noted
that, at the time the Decedent was being admitted, she “was not entirely aware” that she was leaving
the hospital and being placed into a nursing home.


                                                  -6-
        The Kindred Defendants argue strongly that the facts show that the Decedent was
incompetent and lacked the capacity to contract. From our review of the record, the trial court’s
findings are supported by admissions by the Estate and by Barbee. The complaint affirmatively
alleges that the Decedent was “of unsound mind” and “unable to attend to her affairs” on July 8,
2004, the date on which the Arbitration Agreement was signed. Barbee testified in his deposition
that the Decedent “wasn’t really capable of knowing what was going on a lot” and was “not really”
aware that she was going to be transferred to Ripley. This mirrors the trial court’s conclusion. Thus,
regardless of whether the trial court had expert medical testimony on the Decedent’s mental
condition at the time the Arbitration Agreement was executed, its findings were fully supported by
admissions by Barbee and by the Estate.

                                                      Agency

        The Estate next argues that the trial court erred in finding that, in light of “exigent
circumstances,” Barbee had apparent authority to act on the Decedent’s behalf to execute the
Arbitration Agreement. Whether exigent circumstances may vest a putative agent with apparent
authority is a question of law.

         At the outset, we must briefly examine some basic concepts. The common law of agency
“attributes the legal consequences of one person’s action to another person.” RESTATEMENT (THIRD )
OF AGENCY ch. 2, Introductory Note (2006). The RESTATEMENT notes that “[r]elationships of
agency are among the larger family of relationships in which one person acts to further the interests
of another and is subject to fiduciary obligations.” Id. § 1.01, cmt. g. Unlike some other fiduciary
relationships, in an agency, the principal has the power to terminate the authority of the agent. Id.
A common-law agency arises when the principal assents for the agent to act on the principal’s behalf,
and the agent agrees. Id. § 1.01, cmt. c. A person who is not in a mental condition to contract is not
competent to appoint an agent for the purpose of contracting. 3 AM . JUR. 2D Agency § 11 (2002).
An agency relationship is created only “at the will and by the act of the principal and its existence
is a fact to be proved by tracing it to some act of the alleged principal and turns on facts concerning
the understanding between the alleged principal and agent.” Id. § 15.

         Two bases under which the common law attributes the legal consequences of the agent’s
actions to the principal are actual authority and apparent authority.2 RESTATEMENT (THIRD ) OF
AGENCY ch. 2, Introductory Note (2006). The RESTATEMENT includes implied authority under the
auspices of actual authority. The term “implied authority” is typically used to denote actual authority
either to do what is necessary to accomplish the agent’s express responsibilities, or to act in a manner
that the agent reasonably believes the principal wishes the agent to act, in light of the principal’s
objectives and manifestations. Id. § 2.01 cmt. b.




         2
         As a third basis, the R ESTATEM EN T also includes respondeat superior, which is not applicable in this case.
R ESTATEM ENT (T HIRD ) O F A GEN CY ch. 2, Introductory Note (2006).

                                                         -7-
        Here, the trial court found that Barbee had “apparent authority” to act on behalf of his
mother. In general, apparent authority is the power held by the putative agent “to affect a principal’s
legal relations with third parties when a third party reasonably believes the [putative agent] has
authority to act on behalf of the principal and that belief is traceable to the principal’s
manifestations.” Id. § 2.03. In Tennessee, apparent authority has been described as:

                (1) such authority as the principal knowingly permits the agent to
                assume or which he holds the agent out as possessing;
                (2) such authority as he appears to have by reason of the actual
                authority which he has;
                (3) such authority as a reasonably prudent man, using diligence and
                discretion, in view of the principal's conduct, would naturally suppose
                the agent to possess.

Franklin Distrib. Co. v. Crush Intern. (U.S.A.), Inc., 726 S.W.2d 926, 930–31 (Tenn. Ct. App.
1986) (citing V.L. Nicholson Co. v. Transcon Inv. & Fin. Ltd., 595 S.W.2d 474, 483 (Tenn. 1980);
S. Ry. Co. v. Pickle, 197 S.W. 675, 677 (Tenn. 1917); Hart v. First Nat’l Bank of Memphis, 690
S.W.2d 536, 539 (Tenn. Ct. App. 1985); Rich Printing Co. v. Estate of McKellar, 330 S.W.2d 361,
376 (Tenn. Ct. App. 1959); Rural Educ. Ass’n v. Bush, 298 S.W.2d 761, 766 (Tenn. Ct. App.
1956)). We note that “a principal is responsible for the acts of an agent within his apparent authority
only where the principal himself by his acts or conduct has clothed the agent with the appearance of
authority, and not where the agent’s own conduct has created the apparent authority.” S. Ry. Co.,
197 S.W. at 677. The burden is on the claimant to show the authority of the agent. John J. Heirigs
Const. Co. v. Exide, 709 S.W.2d 604, 608 (Tenn. Ct. App. 1986).

        In the instant case, the Estate contends that Barbee did not have the authority to waive the
Decedent’s right to a jury trial, and that the trial court erred in finding otherwise. Further, the Estate
argues that exigent circumstances, as cited by the trial court, do not exist in this case. Ripley
concedes that Barbee did not have express authority to act on the Decedent’s behalf, but contends
that the Decedent’s incompetency and the absence of anyone with express authority to act on her
behalf should be deemed as sufficient exigent circumstances to clothe Barbee with authority to act
on the Decedent’s behalf. As proof of apparent authority, Ripley cites to the fact that Barbee is the
Decedent’s only child, Barbee’s care for the Decedent and payment of her bills, Barbee’s execution
of documents on her behalf, and Barbee’s consent to the Decedent’s placement in Ripley.

        In this case, Barbee testified that at the time he signed the Ripley admission papers he did not
have a power of attorney, and had not been appointed as either a guardian or a conservator for his
mother. Barbee testified that at the time he executed the Agreement he told the Ripley representative
that he did not have power of attorney for his mother. The Kindred Defendants do not dispute
Barbee’s testimony, and concede that he did not have express authority to act for the Decedent.
Moreover, Ripley’s Admission Agreement expressly differentiates between those persons with
express legal authority to act on behalf of a resident and those without such authority. The
Agreement includes a page entitled “Definition of Parties to this Agreement,” which has definitions


                                                   -8-
for potential parties and blanks beside each definition for the parties to fill in their names. Ripley
is designated as the “Nursing Center,” and the Decedent is designated as the “Resident.” The term
“Legal Representative” is defined as “the individual or organization name[d] above. This person or
group has the legal authority to act on behalf of the Resident. Examples: Conservator, Legal
Guardian, person with Power of Attorney.” The blank beside this definition is not filled in. In the
Agreement, Barbee is designated as the “Financial Agent,” that is, the “individual or organization
who personally assumes financial responsibility for any part of the Resident’s share of costs or
liability. The ‘Financial Agent’ is a third party guarantor of payment.”

        Recent Tennessee cases involving arbitration agreements executed in connection with
admission to a nursing home have focused on the scope of the authority given expressly to the agent
by the resident, via either a power of attorney or oral statements. See Owens v. Nat’l Health Corp.,
No. M2005-01272-SC-R11-CV, 2007 WL 3284669, at *5–6 (Tenn. Nov. 8, 2007) (holding that the
power of attorney document authorized the attorney-in-fact to enter into the arbitration agreement
on behalf of the principal); Necessary v. Life Care Ctrs. of Am., Inc., No. E2006-00453-COA-R3-
CV, 2007 WL 3446636, at *5 (Tenn. Ct. App. Nov. 16, 2007) (holding that because the plaintiff had
express authority to sign all of the admission documents, she also had authority to sign the arbitration
agreements on the decedent’s behalf as one of those admission documents). But see Hendrix v. Life
Care Ctrs. of Am., Inc., No. E2006-02288-COA-R3-CV, 2007 WL 4523876, at * 5 (Tenn. Ct. App.
Dec. 21, 2007) (holding that the durable power of attorney was not effective at the time of the
resident’s admission because the resident was still able to make her own medical decisions at the
time of admission, thus, daughter’s waiver of her mother’s right to a jury trial was unenforceable).
See also Thornton v. Allenbrooke Nursing & Rehab. Ctr., LLC, No. W2007-00950-COA-R3-CV,
2008 WL 2687697 (Tenn. Ct. App. July 3, 2008). Here, of course, there was no express grant of
authority from the Decedent to Barbee.

        In support of the trial court’s finding that Barbee had apparent authority to execute the
Arbitration Agreement on behalf of the Decedent, the Kindred Defendants cite an Alabama decision,
and argue that a principal can vest a putative agent with apparent authority “by omission as well as
commission, and such authority is implied where the principal passively permits the agent to appear
to a third person to have authority to act on his behalf.” Perry v. Meredith, 381 So. 2d 649, 650
(Ala. Civ. App. 1980). They cite another Alabama case that states that the scope of the putative
agent’s apparent authority can be determined by the authority that the principal held out the agent
as possessing or that the principal permitted the agent to represent that he possessed. Treadwell
Ford, Inc. v. Courtesy Auto Brokers, Inc., 426 So. 2d 859, 861 (Ala. Civ. App. 1983). The Kindred
Defendants further cite Broughsville v. OHECC, LLC, No. 05CA008672, 2005 WL 3483777 (Ohio
Ct. App. Dec. 21, 2005), in which a mentally competent mother permitted her daughter to execute
her admission papers to the defendant nursing home. Id. at *2. The documents included an
arbitration agreement, and the nursing home resident later argued that her daughter did not have
authority to sign it. Id. The Ohio court found that the daughter had apparent authority because the
mother was present when the documents were executed and “knowingly permitted” her daughter to
sign on her behalf. Id.



                                                  -9-
        Applying these arguments to the case at bar, the Kindred Defendants note that Barbee was
the Decedent’s closest living relative, that he had a history of caring for the Decedent, had a joint
bank account with her and had written checks to pay her bills, and had signed documents to have her
admitted to the hospital for her surgery. The Kindred Defendants characterize Barbee’s execution
of the Ripley admission documents as a “similar action” to those taken by Barbee in the past on his
mother’s behalf, with her apparent assent.

        We must reject this argument. From our review of the above authorities, it is clear that
agency status, via either actual authority or apparent authority, stems from the actions of the
principal. Apparent authority may be found “only where the principal himself by his acts or conduct
has clothed the agent with the appearance of authority.” S. Ry. Co., 197 S.W. at 677. See also
Hendrix, 2007 WL 4523876, at *5; Thornton, 2008 WL 2687697, at *5–6. Regardless of the
actions the Decedent may have permitted Barbee to take on her behalf in the past, at the time she was
admitted to Ripley, she no longer possessed “her mental faculties.” This fact could not have been
lost on the Ripley representatives who were admitting her to their facility. If the Decedent could no
longer “act on her own behalf,” how could she have “clothed [Barbee] with the appearance of
authority” to act on her behalf? See Ricketts v. Christian Care Ctr. of Cheatham County, Inc., No.
M2007-02036-COA-R9-CV, 2008 WL 3833660, at *2 (Tenn. Ct. App. Aug. 15, 2008) (finding that
nursing home resident who was not competent when readmitted did not have the ability to give her
daughter authority to sign arbitration agreement).

         The Kindred Defendants emphasize, and the trial court relied on, “exigent circumstances”
to support the finding that Barbee had apparent authority to act on his mother’s behalf. Presumably,
the “exigent circumstances” were the fact that, as noted in the trial court’s order, the Decedent “could
not act in her own behalf, and could not make decisions,” but needed to be admitted to a skilled care
facility such as Ripley.

         We find no support in the above authorities for the proposition that apparent authority for a
principal/agent relationship can be created by “exigent circumstances,” whatever that phrase means
in this context. In making this finding, the trial court was apparently referring to a statement by this
Court in a case heavily relied upon by the Kindred Defendants, Raiteri ex rel. Cox v. NHC
Healthcare/Knoxville, Inc., No. E2003-00068-COA-R9-CV, 2003 WL 23094413 (Tenn. Ct. App.
Dec. 30, 2003). In Raiteri, Mr. Cox met with the nursing home’s admissions coordinator to make
arrangements for his wife’s admission. Id. at *1. Despite the fact that Mrs. Cox was mentally
competent, Mr. Cox was asked at the meeting to sign the nursing home’s “Admission and Financial
Contract” on his wife’s behalf. Id. After discussing the enforceability of the contract, the Court
stated:

       [W]e conclude that the evidence before us preponderates against the trial court’s
       implicit decision that Mr. Cox had authority to sign the admission agreement on
       behalf of his wife. There is absolutely no evidence that he had her express authority
       to sign for her. We also hold that the defendant cannot rely upon the concept of
       apparent authority. The evidence reflects that Mrs. Cox had her mental faculties, was


                                                 -10-
         “sharper” than her husband, and was otherwise in a position to indicate whether she
         assented to the terms of these significant contract provisions. The record is also
         devoid of any exigent circumstances that would clothe Mr. Cox with apparent
         authority to bind his wife to the admission agreement, particularly the alternative
         dispute resolution provisions. We certainly find nothing in the record before us,
         either factually or legally, warranting a holding that Mr. Cox had the right to waive
         his wife’s very valuable constitutional right to a jury trial to adjudicate her rights in
         this matter.

Id. at *9 (emphasis added).

        From this statement, the Kindred Defendants argue that the Raiteri Court held “that exigent
circumstances could create an agency relationship.” We must note that the Raiteri Court’s statement
was the converse; it merely noted that there were no “exigent circumstances” in that case.
Regardless, the Raiteri Court cited no authority for this statement, and we find none supporting it.
Under these circumstances, we must disagree with the trial court’s holding that Barbee had “apparent
authority” to act as his mother’s agent in executing the Arbitration Agreement.3

                                     Tennessee Health Care Decisions Act

       How, then, are health care decisions to be made for a person such as the Decedent, who
became apparently incapacitated without having designated an agent for such purposes, but
nevertheless required immediate medical treatment? No doubt countless health care facilities and
providers have relied on the consent of available “next-of-kin,” as Ripley did here. Regardless of
custom, however, we find no basis in the common law for such next-of-kin to make health care
decisions for an incapacitated relative, in the absence of actual or apparent authority as the patient’s
agent. Recognizing this recurring problem, Tennessee enacted the Tennessee Health Care Decisions
Act, which “fills a long-standing gap in Tennessee law on health care surrogacy.”4 See T.C.A. § 68-
11-1801 et seq. (2006).5 After reviewing the Act, we must find that it governs the question of
Barbee’s authority to act on his Mother’s behalf in executing the Ripley admission documents. The


         3
           Some jurisdictions have held that a nursing home resident may be bound by an arbitration agreement if the
resident is deemed to be an intended third party beneficiary to the contract between the nursing home and the person
executing the documents. See Alterra Healthcare Corp. v. Estate of Linton ex rel. Graham, 953 So. 2d 574, 579
(Fla. Dist. Ct. App. 2007); Forest Hill Nursing Ctr., Inc. v. McFarlan, No. 2007-CA-00327-COA, 2008 W L
852581, at *4–6 (Miss. Ct. App. April 1, 2008). The parties have not raised this issue and we do not address it other
than to note that this argument has already been rejected by this Court. See Ricketts v. Christian Care Ctr. of
Cheatham County, Inc., No. M2007-02036-COA-R9-CV, 2008 W L 3833660, at *4–5 (Tenn. Ct. App. Aug. 15,
2008).

         4
         Charles M. Key & Gary D. Miller, The Tennessee Health Care Decisions Act: A Major Advance in the
Law of Critical Care Decision Making, T EN N . B.J., Aug. 2004, at 25. This article provides a useful overview of the
Act.

         5
             The Tennessee statute is based on the Uniform Health Care Decisions Act. See id. at 31.

                                                          -11-
Act took effect on July 1, 2004, and Barbee signed the Ripley admissions documents seven days
later, on July 8, 2004.6 Tennessee Health Care Decisions Act, 2004 Tenn. Pub. Acts ch. 862, § 6.

       The Tennessee Health Care Decisions Act outlines how a competent adult may execute an
“advance directive”7 for health care that authorizes an “agent”8 to make health care decisions should
the adult lose the capacity to do so. See T.C.A. § 68-11-1803(b) (2006). In the alternative, a
competent adult may “designate any individual to act as surrogate9 by personally informing the
supervising health care provider.”10 Id. § 68-11-1806(a).

        For an adult patient who lacks capacity and has not appointed an agent or designated a
surrogate, the Act provides specific directions for the identification of a surrogate to make health
care decisions on the patient’s behalf. Under such circumstances, the Act states: “the patient’s
surrogate shall be identified by the supervising health care provider and documented in the current
clinical record of the institution . . . at which the patient is then receiving health care.” Id. § 68-11-
1806(c)(1). The surrogate is intended to be an adult “who has exhibited special care and concern
for the patient, who is familiar with the patient’s personal values, who is reasonably available, and
who is willing to serve.” Id. § 68-11-1806(c)(2). The Act states that such a surrogate “may make
all health care decisions for the patient that the patient could make on the patient’s own behalf,”
without judicial approval, with special requirements for a decision to withhold artificial nutrition and
hydration. Id. § 68-11-1806(e), (f).

        The designated physician is authorized to identify such a surrogate only for a patient who
“lacks capacity.”11 Id. § 68-11-1806(c)(1). The Act states unequivocally that the “determination that
an individual lacks . . . capacity . . . must be made by the designated physician.” Id. § 68-11-
1803(d). The Act further cautions that a “surrogate may make a health care decision for a patient


         6
           W e find no place in the appellate record in which the Tennessee Health Care Decisions Act was cited to
the trial court below.

         7
         “Advance directive” is defined in the Act as “an individual instruction or a written statement relating to the
subsequent provision of health care of the individual.” T.C.A. § 68-11-1802(a)(1) (2006).

         8
          “Agent” is defined in the Act as “an individual designated in an advance directive for health care to make a
health care decision for the individual granting the power.” Id. § 68-11-1802(a)(2).

         9
         “Surrogate” is defined as “an individual, other than a patient’s agent or guardian, authorized under this part
to make a health care decision for the patient.” Id. § 68-11-1802(a)(18).

         10
           “Supervising health care provider” is defined as “the designated physician” (also a defined term) or, if the
designated physician is not available, the health care provider “who has undertaken primary responsibility for an
individual’s health care.” Id. § 68-11-1802(a)(17). “Designated physician” means the physician who has been
designated to take primary responsibility or who undertakes primary responsibility for the individual’s health care.
Id. § 68-11-1802(a)(4).

         11
           “Capacity” is defined as “an individual’s ability to understand the significant benefits, risks, and
alternatives to proposed health care and to make and communicate a health care decision.” Id. § 68-11-1802(a)(3).

                                                         -12-
who is an adult . . . if, and only if: (1) The patient has been determined by the designated physician
to lack capacity; and (2) No agent or guardian has been appointed or the agent or guardian is not
reasonably available.” Id. § 68-11-1806(b).

        Thus, the Act provides a comprehensive, common sense method for making health care
decisions for a patient who does not have an agent or guardian, but who cannot act on her own
behalf.12 The apparatus set forth in the Act is practical and expeditious, eschewing judicial
involvement, and can be accomplished in a matter of minutes in the healthcare facility that is to treat
the patient. The statutory language is directive, mandating that both the determination of the
patient’s incapacity and the identification of the patient’s surrogate be made by the patient’s
“designated physician,” the physician with primary responsibility for the patient’s care. A surrogate
may make health care decisions on the patient’s behalf only if these requirements are met.

        Having outlined the pertinent provisions of the Tennessee Health Care Decisions Act, we
apply them to the facts in this case. Execution of the documents admitting the Decedent to the
Ripley skilled-care facility, including execution of the accompanying arbitration agreement, is clearly
a “health care decision” within the meaning of the Act.13 See Owens, 2007 WL 3284669, at *5–6
(holding that executing an arbitration agreement as part of a nursing home admission document is
a health care decision under the Durable Power of Attorney for Health Care Act).14 As noted above,
we have concluded that Barbee had neither actual nor apparent authority to act as the Decedent’s
agent in signing the Ripley admission documents. Therefore, in order to be authorized to sign the
documents, Barbee must have been identified as the Decedent’s “surrogate” in accordance with the
provisions of the Act. This requires (1) a determination that the Decedent lacked capacity to make
her own health care decisions and (2) identification of Barbee as the Decedent’s surrogate.

        As noted above, the trial court found that at the time of her admission to Ripley the Decedent
“did not have her mental faculties,” “could not act in her own behalf,” and “could not make
decisions.” We have held that these factual findings were supported by the record. Nevertheless,
this does not equate to a determination that the Decedent lacked capacity for the purposes of the
Health Care Decisions Act. In McKey v. Nat’l Healthcare Corp., No. M2007-02341-COA-R3-CV,
2008 WL 3833714 (Tenn. Ct. App. Aug. 15, 2008), the decedent’s daughter signed documents
admitting her mother to the defendant nursing home, including an arbitration agreement. Id. at *1.
The decedent’s estate later sued the nursing home, and the nursing home sought to compel arbitration


         12
           The Act also addresses the situation in which no surrogate is reasonably available for such a patient. See
id. § 68-11-1806(c)(5).

         13
            “Health care” is defined in the Act as “any care, treatment, service or procedure to maintain, diagnose,
treat, or otherwise affect an individual’s physical or mental condition.” Id. § 68-11-1802(a)(6). A “health care
decision” is defined as “consent, refusal of consent or withdrawal of consent to health care.” Id. § 68-11-1802(a)(7).

         14
           The definitions of “health care” and “health care decision” are nearly identical in both the Tennessee
Health Care Decisions Act and the Tennessee Durable Power of Attorney for Health Care Act. See T.C.A. § 34-6-
201(2), (3) (2007).

                                                        -13-
under the agreement. Id. The trial court found that the daughter did not have authority to sign the
arbitration agreement and declined to compel arbitration. Id. The nursing home appealed. Id.

        On appeal, this Court applied the Tennessee Health Care Decisions Act to determine whether
the daughter had authority as her mother’s “surrogate” to execute the arbitration agreement. Id. at
*2. The decedent’s estate conceded that the decedent was incompetent at the time of her admission
to the nursing home. Id. at *3. This Court found nevertheless that the statutory requirement of a
determination of incapacity was not met:

        Under Tenn. Code Ann. § 68-11-1812, a person is presumed to have the capacity to
        make his or her own health care decisions. To overcome that presumption, the
        statute requires a determination by a physician that the patient lacks capacity. Tenn.
        Code Ann. § 68-11-1806(b). The Tennessee Health Care Decision[s] Act affects
        what our courts have described as a fundamental right: personal autonomy, which
        includes the ability to make one’s own decisions about health care. . . . We are
        unwilling to overlook the statutory requirements.

Id. (citation omitted). The Ripley admission documents signed by Barbee name Dr. Joe Hunt as the
Decedent’s attending physician, and he presumably had primary responsibility for the Decedent’s
health care and thus would likely be considered the Decedent’s “designated physician” under the
Health Care Decisions Act. See id. (finding that the physician named as the patient’s attending
physician in the nursing home admission agreement was the designated physician under the Act).
Regardless, however, of the identity of the Decedent’s designated physician, we find nothing in the
record indicating that at the time of the Decedent’s admission any physician had made the requisite
determination that the Decedent lacked the capacity to make and communicate her health care
decisions.

        Moreover, there is no indication in the record that the Decedent’s designated physician had
identified Barbee as the Decedent’s surrogate to make health care decisions on her behalf. The Act
mandates that such identification be made by the “supervising health care provider,” usually the
designated physician unless he is unavailable. T.C.A. §§ 68-11-1802(a)(17), -1806(c)(1) (2006).
See McKey, 2008 WL 3833714, at *3. In addition, the identification of the surrogate must be
“documented in the current clinical record of the institution or institutions at which the patient is then
receiving health care.” T.C.A. § 68-11-1806(c)(1) (2006). See McKey, 2008 WL 3833714, at *4.
The appellate record contains no indication that any physician charged with the Decedent’s care
made any notation in her clinical record identifying Barbee as the Decedent’s surrogate under the
Act. We must conclude, then, that the statutory requirements for Barbee to be considered as the
Decedent’s “surrogate” under the Health Care Decisions Act were not met.

                                             CONCLUSION

        As the proponent of the arbitration agreement, the Kindred Defendants have the burden of
establishing that Barbee had authority to sign the agreement on the Decedent’s behalf. See Exide,


                                                  -14-
709 S.W.2d at 608. We have found that Barbee was not the Decedent’s agent and did not have
apparent authority under the common law, and that he was not the Decedent’s surrogate under the
Tennessee Health Care Decisions Act. We must conclude, then, that the Kindred Defendants have
failed to carry their burden of proving that Barbee had authority to execute the arbitration agreement
on the Decedent’s behalf, and it is therefore unenforceable. Consequently, we must reverse the trial
court’s order compelling arbitration and remand the case to the trial court.

       The decision of the trial court is reversed and the cause is remanded for further proceedings
consistent with this Opinion. Costs of this appeal are assessed to the Appellees, Kindred Healthcare
Operating, Inc.; Kindred Healthcare, Inc.; Kindred Nursing Center East, LLC; Kindred Hospitals
Limited Partnership; Kindred Nursing Centers Limited Partnership d/b/a Ripley Healthcare and
Rehabilitation Center; Nellie Wilson, in her capacity as Administrator of Ripley Healthcare and
Rehabilitation Center; N. Jeannette McKinion, in her capacity as Administrator of Ripley Healthcare
and Rehabilitation Center, and Jonathan Owens, in his capacity as Administrator of Ripley
Healthcare and Rehabilitation Center.




                                               __________________________________________
                                               HOLLY M. KIRBY, JUDGE




                                                -15-
