                       Illinois Official Reports

                              Appellate Court



                  Fiala v. Bickford Senior Living Group, LLC,
                            2015 IL App (2d) 141160



Appellate Court   EDWARD M. FIALA, JR., Plaintiff-Appellee, v. BICKFORD
Caption           SENIOR LIVING GROUP, LLC, Defendant-Appellant.




District & No.    Second District
                  Docket No. 2-14-1160




Filed             April 30, 2015




Decision Under    Appeal from the Circuit Court of Kane County, No. 13-L-635; the
Review            Hon. James R. Murphy, Judge, presiding.




Judgment          Reversed.




Counsel on        Mark R. Feldhaus and Matthew J. Eddy, both of Lashly & Baer, P.C.,
Appeal            of St. Louis, Missouri, for appellant.

                  Jeffrey S. Deutschman, of Deutschman & Associates, P.C., of
                  Chicago, for appellee.
     Panel                     JUSTICE BIRKETT delivered the judgment of the court, with
                               opinion.
                               Justices Zenoff and Jorgensen concurred in the judgment and opinion.




                                                 OPINION


¶1         Defendant, Bickford Senior Living Group, LLC, appeals the judgment of the circuit court
       of Kane County denying its motion to dismiss the second amended complaint of plaintiff,
       Edward M. Fiala, Jr., and compel arbitration. Defendant argues that plaintiff’s daughter, Susan
       Kahanic, acting as his attorney-in-fact under a health-care power of attorney, had the power to
       enter into a contract for plaintiff’s medical care and to bind plaintiff to arbitrate disputes arising
       out of the agreement. Defendant also argues that the claims in plaintiff’s complaint fall within
       the scope of the arbitration provision in question. We determine that plaintiff was validly
       bound to the arbitration provision by his attorney-in-fact and that his claims are within the
       scope of the arbitration provision, and thus we reverse the trial court’s judgment.

¶2                                          I. BACKGROUND
¶3         On December 17, 2013, plaintiff filed a complaint against defendant alleging violations of
       the Nursing Home Care Act (210 ILCS 45/1-101 et seq. (West 2012)) and common-law
       claims, including battery, false imprisonment, intentional infliction of emotional distress, and
       civil conspiracy. We summarize plaintiff’s allegations.
¶4         From October 2012 through August 2013, plaintiff (along with his wife) resided in a
       long-term-care facility owned and operated by defendant and located in St. Charles. Plaintiff
       alleged that, because defendant’s staff considered him to be a burdensome resident who
       required a lot of attention, he would be placed overnight into “Mary B’s” area, where he would
       receive Paxil and other unknown drugs. Plaintiff was experiencing a condition similar to
       Parkinson’s disease, and Paxil was contraindicated for that condition. The administration of
       Paxil and other drugs was without his prior consent, and the placement apart from his wife was
       against his and her express wishes. Plaintiff alleged that the administration of the drugs, and
       Paxil in particular, violated the medical instructions in his chart. The drugs reduced his quality
       of life, caused him fear and confusion, and caused deterioration in his physical condition, and
       the manner in which they were administered (by removing plaintiff from his apartment) as well
       as the soporific effects caused a loss of society with his wife.
¶5         Plaintiff also alleged that one of defendant’s employees entered his apartment without
       permission and stole items from him and his wife. According to plaintiff, defendant was aware
       of the employee’s identity and actions (as the employee had not limited his activities to
       plaintiff’s apartment), but defendant did nothing to stop the thief.
¶6         On March 10, 2014, defendant filed a motion to dismiss the complaint and to enforce the
       arbitration agreement included in the assisted-living establishment contract (establishment
       contract) that Kahanic executed on his behalf pursuant to the health-care power of attorney. In

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     the motion to dismiss, defendant made the following pertinent allegations. On October 8, 2012,
     plaintiff executed an Illinois statutory short-form power of attorney for health care appointing
     Kahanic as his attorney-in-fact and agent authorized to make decisions for plaintiff. The power
     of attorney provided pertinently that Kahanic was appointed:
             “as [his] attorney-in-fact ([his] ‘agent’) to act for [him] and in [his] name (in any way
             [he] could act in person) to make any and all decisions for [him] concerning [his]
             personal care, medical treatment, hospitalization, and health care and to require,
             withhold or withdraw any type of medical treatment or procedure, even though [his]
             death [may] ensue.”
     Moreover, the power of attorney provided that it “shall become effective on *** (a) the date of
     execution hereof.”
¶7       Upon being admitted to defendant’s assisted-living facility, plaintiff, through Kahanic as
     attorney-in-fact, executed the establishment contract, setting forth the obligations and duties of
     plaintiff and defendant during plaintiff’s residence at the facility. The establishment contract
     obligated defendant:
             “[t]o provide designated services to [plaintiff], as delineated in the Service Agreement.
             These services provided by certified and trained assistants shall include: three meals
             per day including snacks, housekeeping services, laundry services and maintenance
             services. Also available to [plaintiff] is oversight/supervision of medications,
             assistance with bathing, (Residents get a standard of 2 baths per week), dressing
             assistance with ambulation and ambulatory devices, and transferring from wheelchairs
             when such assistance is needed. Skilled Nursing services are excluded. However,
             arrangements may be made for these to be provided by a Medicare certified Home
             Health agency.”
¶8       The establishment contract also included a “Binding Arbitration Provision.” The
     arbitration provision provided:
                 “Any controversy, claim or dispute arising out of or relating to this Establishment
             Contract or the breach thereof, shall be settled by arbitration administered by the
             American Arbitration Association in accordance with its rules and judgment upon the
             award rendered by the arbitrator may be entered in any court having jurisdiction
             thereof. The award of the arbitrator(s) shall be final and binding upon the parties
             without the right of appeal to the courts. The arbitrators will have no authority to award
             punitive damages or any other damages not measured by the prevailing party’s actual
             damages, and may not, in any event, make any ruling, finding or award that does not
             conform to the terms and conditions of the Contract. The parties shall each bear its own
             costs and expenses and an equal share of the arbitrators’ and administrative fees of
             arbitration.”
     We note that the arbitration provision was an integral part of the establishment contract. In
     other words, a prospective resident’s agreement to the arbitration provision (and the other
     provisions of the establishment contract) was required in order to secure admission into
     defendant’s facility.
¶9       Included with the motion to dismiss was an affidavit purporting to state facts that showed
     that the establishment contract involved interstate commerce. Defendant suggests that the
     affidavit was included to bring the establishment contract within the Federal Arbitration Act (9


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       U.S.C. § 1 et seq. (2000)), which, according to defendant, would provide an additional and
       independent basis to enforce the contract.
¶ 10       On May 29, 2014, the trial court denied defendant’s motion to dismiss. In doing so, the trial
       court noted that the power of attorney that was attached as an exhibit to defendant’s motion
       was not complete. The trial court also determined that the contract was insufficient because it
       did not appear to have been executed on behalf of plaintiff; rather, Kahanic endorsed the
       contract in a way that indicated that she had read it but not executed it.
¶ 11       On June 4, 2014, defendant filed a motion to reopen the proofs on its motion to dismiss.
       Defendant attached the complete power of attorney executed by plaintiff and Kahanic, which
       included the portion omitted from the original exhibit attached to the motion to dismiss. On
       September 12, 2014, the trial court allowed defendant to supplement the record with the
       complete power of attorney.
¶ 12       On October 27, 2014, the parties again argued the motion to dismiss. Following the
       argument, the trial court denied the motion to dismiss. This time, the trial court determined that
       Kahanic was plaintiff’s agent pursuant to the health-care power of attorney. The establishment
       contract included in its provisions a rental agreement and a service agreement that included
       medical services. The court further determined that the establishment contract also included
       the arbitration provision, which required that “[a]ny controversy, claim or dispute arising out
       of or relating to” the establishment contract “be settled by arbitration.” The court held that
       Kahanic “did have the authority,” under the power of attorney, “to sign the Establishment
       Contract and the included arbitration agreement here in question and the arbitration agreement
       would be binding on the principal, provided the agreement were invoked in relation to the
       contract itself, or breach of the contract, or on issues of payment.”
¶ 13       Having set the stage, the trial court held that the “language in this particular arbitration
       agreement does not provide broadly *** that the parties shall submit ‘all disputes against each
       other’ or ‘any disputes concerning whether any statutory provisions relating to the Resident’s
       rights under Illinois law were violated,’ ” citing Carter v. SSC Odin Operating Co., 237 Ill. 2d
       30 (2010). The trial court additionally held that the language of the arbitration provision did
       not “provide for arbitration of ‘any dispute arising out of the diagnosis, treatment, or care of the
       Resident,’ ” citing Fosler v. Midwest Care Center II, Inc., 398 Ill. App. 3d 563 (2009). Thus,
       the trial court held that the arbitration provision was not a broad and generic provision with a
       wide scope but was limited narrowly to the terms of the establishment contract. Applying this
       holding, the trial court reasoned that “the arbitration agreement was validly made, at least on
       those issues on which the agent under a [health-care power of attorney] has authority, i.e.,
       issues related to arranging for health care and residential placement in a health care facility and
       the payment therefor.” The trial court then held that Kahanic “did not have the authority to
       agree to arbitrate any other matters related to finances or property rights of [plaintiff]. Further,
       the claims made by plaintiff do not involve the establishment contract, or breach thereof, and
       are therefore not included within the scope of the arbitration clause.”
¶ 14       Turning to defendant’s contention that the arbitration provision was valid under the
       Federal Arbitration Act, the court held that “the questions of whether the agreement for
       arbitration was validly made; and whether the arbitration agreement applies to the dispute at
       hand are questions that are governed by state law and are, in this case, to be resolved by the
       court in the first place, and not the arbitrator.” The court thus denied the motion to dismiss.
       Defendant timely appeals.

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¶ 15                                          II. ANALYSIS
¶ 16       On appeal, defendant presents three issues. First, defendant argues that plaintiff’s claims
       are within the arbitration provision of the establishment contract. Second, defendant argues
       that the health-care power of attorney authorized Kahanic to bind plaintiff to the arbitration
       provision. Last, and alternatively, defendant argues that the Federal Arbitration Act provides
       an independent basis by which to enforce the arbitration provision. We consider each argument
       in turn.
¶ 17       Preliminarily, however, we address our standard of review. This case arose from the trial
       court’s denial of a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure
       (735 ILCS 5/2-619 (West 2012)). We review de novo the trial court’s decision on a motion to
       dismiss pursuant to section 2-619. Nelson v. Kendall County, 2014 IL 116303, ¶ 22. Likewise,
       the scope of the arbitration provision presents a question of contract interpretation, and this is
       also reviewed de novo. Westlake Financial Group, Inc. v. CDH-Delnor Health System, 2015
       IL App (2d) 140589, ¶ 11. The effect of the health-care power of attorney presents an issue of
       both contract and statutory interpretation, both of which are reviewed de novo. Id. (contract
       interpretation); Nelson, 2014 IL 116303, ¶ 22 (statutory interpretation). Finally, we note that
       the parties agree that our review of the issues presented in this case is de novo.

¶ 18                                 A. Scope of the Arbitration Provision
¶ 19        It is a fundamental tenet of Illinois law that the parties are bound to arbitrate only those
       issues they have clearly agreed to arbitrate. Keeley & Sons, Inc. v. Zurich American Insurance
       Co., 409 Ill. App. 3d 515, 520 (2011). Where an arbitration clause is “generic,” meaning that it
       is nonspecific in designating the arbitrable issues, the court is required to examine the wording
       of the arbitration clause along with the other terms of the contract in which the arbitration
       clause is found. Id. at 520-21. A “generic” arbitration clause is characterized by language
       providing that all claims arising out of or relating to the contract at issue shall be decided by
       arbitration. Id. at 520. By contrast, where an arbitration clause contains the phrase, “arising out
       of the agreement” (or a variation thereof), but fails to also include the phrase, “or relating to
       [the agreement]” (or a variation thereof), it is narrower than a generic clause, and any
       arbitration should be limited to the specific terms of the contract or agreement containing the
       arbitration clause. Id. at 522. With these principles in mind, we turn to the language of the
       arbitration provision at issue here.
¶ 20        In this case, the arbitration provision states: “[a]ny controversy, claim or dispute arising out
       of or relating to the Establishment Contract, or the breach thereof, shall be settled by
       arbitration.” In the trial court’s view, this was not a generic arbitration clause. Specifically, the
       trial court held that the “language in this particular arbitration [clause] does not provide
       broadly” and that “the claims made by plaintiff do not involve the establishment contract, or
       breach thereof, and are therefore not included within the scope of the arbitration clause.”
¶ 21        The trial court’s view of the scope of the arbitration provision is clearly in error. The
       arbitration provision includes the language, “[a]ny claim *** arising out of or relating to” the
       establishment contract. This language clearly denominates the arbitration provision as
       “generic,” and generic arbitration provisions are broadly construed. Id. at 520-21. We now turn
       to the terms of the establishment contract.


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¶ 22       The establishment contract provides that the following services were available to the
       resident: “oversight/supervision of medications, assistance with bathing, *** dressing,
       assistance with ambulation and ambulatory devices, and transferring from wheelchairs when
       such assistance is needed.” The establishment contract further provides that the resident “may
       receive assistance with monitoring health care, ordering supplies/supplemental services,
       arranging medical care, assistance with medication, bowel and bladder management, night
       time care, personal hygiene, bathing, dressing, ambulation, eating, orientation,
       communication, counseling, behavior management, socialization, monitoring of safety, and
       transportation.” Both of the quoted provisions from the establishment contract deal with the
       issue of a resident’s medication. Plaintiff’s complaint alleged that plaintiff was given Paxil and
       other unknown medications that were not included in his medical chart, so this allegation
       would appear to be squarely within the contemplation of the establishment contract and,
       therefore, within the arbitration provision. Indeed, plaintiff concedes on appeal that the
       establishment contract obligated defendant to provide “designated services,” including
       “supervision of medication” and “[a]rranging medical care.” It seems, then, that both plaintiff
       and defendant agree on what the language of the contract called for, even if plaintiff continues
       to dispute that his claims fall within the scope of the arbitration provision. Accordingly, we
       hold that, based on the allegations underpinning plaintiff’s claims, those claims arise out of or
       are related to the establishment contract, because they cover services that were to be provided
       by defendant to plaintiff as a result of the execution of the establishment contract.
¶ 23       Plaintiff argues that the establishment contract did not contain an “agreement to arbitrate
       claims for damages arising from defendant’s violation of the Nursing Home Care Act, *** or
       claims for damages under common law theories of liability.” This is too formalistic a view.
       Plaintiff alleged that defendant, under the guise of supervising and assisting him with
       medications, gave him Paxil and other unknown medications in order to sedate him and to
       chemically control him while he was in defendant’s care. The establishment contract included
       terms obligating defendant to assist plaintiff with taking medication. The conduct complained
       of arises out of or is related to these terms; therefore, plaintiff’s claims based on that conduct
       also arise out of or are related to the terms of the establishment contract. Accordingly, we reject
       plaintiff’s argument.
¶ 24       Plaintiff contends that the establishment contract was concerned with his renting space and
       receiving designated services from defendant. According to plaintiff, these objects do not
       relate to either plaintiff’s claims or the conduct complained of. We disagree. Among the
       designated services are assistance with and supervision of medications; defendant is alleged to
       have mismedicated plaintiff. This conduct pertains to a designated service and so is included in
       the scope of the arbitration provision.
¶ 25       Plaintiff complains that a case cited by defendant does not support this interpretation. In its
       brief, defendant relies on Carter, 237 Ill. 2d 30. The agreement at issue in that case specifically
       provided that the arbitration provision’s scope included “any disputes concerning whether any
       statutory provisions relating to the Resident’s rights under Illinois law were violated.” (Internal
       quotation marks omitted.) Id. at 33. Plaintiff argues that this specificity is absent from the
       establishment contract, so the alleged violations of the Nursing Home Care Act are outside of
       the arbitration provision here. We disagree. Again, the conduct complained of, namely, the
       administration of improper medications to plaintiff, pertains to a designated service agreed to



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       by the parties; therefore, the allegations of misconduct fall within the scope of the arbitration
       provision.
¶ 26       Plaintiff also contends that the arbitration provision in this case lacks the specificity of the
       arbitration clause in Fosler, 398 Ill. App. 3d 563. In Fosler, the arbitration clause stated that
       “any dispute between you and us and any dispute relating to services rendered for any
       condition, and any dispute arising out of the diagnosis, treatment, or care of the Resident,
       including the scope of this arbitration clause and the arbitrability of any claim or dispute,” shall
       be resolved by arbitration. (Internal quotation marks omitted.) Id. at 565-66. The language of
       the arbitration clause in Fosler is sufficiently different to render it inapposite. Further, it is
       precisely because an arbitration provision is nonspecific that it is labeled “generic” and given
       broad interpretation. Keeley, 409 Ill. App. 3d at 520. Accordingly, we reject plaintiff’s
       arguments.
¶ 27       Having examined the principles of interpreting an arbitration clause, and having
       determined that the clause here is generic, we hold that the trial court erred in holding that the
       conduct complained of in plaintiff’s complaint was outside of the scope of the arbitration
       provision of the establishment contract. We now turn to the contention that Kahanic exceeded
       her authority under the health-care power of attorney in purporting to bind plaintiff to
       arbitration of any claims or disputes arising out of or related to the establishment contract.

¶ 28                             B. Authority Under the Power of Attorney
¶ 29       Defendant next contends that Kahanic was authorized, under the health-care power of
       attorney, to execute the establishment contract, including the arbitration provision, and that she
       validly bound plaintiff to arbitrate any claims or disputes arising out of or relating to the
       establishment contract. Defendant argues that, under the Powers of Attorney for Health Care
       Law (Power of Attorney Law) (755 ILCS 45/4-1 et seq. (West 2012)), and specifically section
       4-10(c)(3) (755 ILCS 45/4-10(c)(3) (West 2012)), the power of attorney executed by plaintiff
       and Kahanic empowered Kahanic, as plaintiff’s agent and attorney-in-fact, to stand in the
       shoes of plaintiff and to do anything necessary that related to plaintiff’s health care, including
       entering into a contract, containing an arbitration provision, that placed plaintiff into an
       assisted-living facility. Plaintiff, by contrast, characterizes the establishment contract as a
       rental and services agreement and argues that the Power of Attorney Law allows an agent to
       make only health-care-related decisions and any incidental decisions that are reasonably
       necessary to accomplish payment for the costs incurred from the health-care-related decisions.
       To resolve the parties’ arguments, we first turn to the pertinent language of the Power of
       Attorney Law.
¶ 30       The legislative purpose of the Power of Attorney Law is to recognize:
               “the right of the individual to control all aspects of his or her personal care and medical
               treatment, including the right to decline medical treatment or to direct that it be
               withdrawn, even if death ensues. The right of the individual to decide about personal
               care overrides the obligation of the physician and other health care providers to render
               care or to preserve life and health.
                   However, if the individual becomes disabled, her or his right to control treatment
               may be denied unless the individual, as principal, can delegate the decision making
               power to a trusted agent and be sure that the agent’s power to make personal and health


                                                    -7-
               care decisions for the principal will be effective to the same extent as though made by
               the principal.” 755 ILCS 45/4-1 (West 2012).
       Thus, the Power of Attorney Law is intended to allow an individual to designate an agent to
       stand in his or her shoes and to make health-care decisions in the event of disability, “to the
       same extent as though made by” the individual.
¶ 31       A “health care agency” refers to the power-of-attorney agreement and is defined to be: “an
       agency governing any type of health care, anatomical gift, autopsy or disposition of remains
       for and on behalf of a patient and refers to the power of attorney or other written instrument
       defining the agency or the agency, itself, as appropriate to the context.” 755 ILCS 45/4-4(c)
       (West 2012). Thus, the Power of Attorney Law provides that the authority of an agent under a
       health-care power-of-attorney agreement encompasses any type of health-care decision. We
       therefore hold that the unambiguous language of the Power of Attorney Law encompasses a
       decision to admit the principal to an assisted-living facility such as defendant’s.
¶ 32       Plaintiff and Kahanic executed a statutory short-form power of attorney for health care.
       See 755 ILCS 45/4-10(b) (West 2012). Under section 4-10(c):
               “The statutory short form power of attorney for health care (the ‘statutory health care
               power’) authorizes the agent to make any and all health care decisions on behalf of the
               principal which the principal could make if present and under no disability, subject to
               any limitations on the granted powers that appear on the face of the form, to be
               exercised in such manner as the agent deems consistent with the intent and desires of
               the principal. *** The agent may sign and deliver all instruments, negotiate and enter
               into all agreements and do all other acts reasonably necessary to implement the
               exercise of the powers granted to the agent. Without limiting the generality of the
               foregoing, the statutory health care power shall include the following powers, subject
               to any limitations appearing on the face of the form:
                       (1) The agent is authorized to give consent to and authorize or refuse, or to
                   withhold or withdraw consent to, any and all types of medical care, treatment or
                   procedures relating to the physical or mental health of the principal, including any
                   medication program, surgical procedures, life-sustaining treatment or provision of
                   food and fluids for the principal.
                       (2) The agent is authorized to admit the principal to or discharge the principal
                   from any and all types of hospitals, institutions, homes, residential or nursing
                   facilities, treatment centers and other health care institutions providing personal
                   care or treatment for any type of physical or mental condition. ***
                       (3) The agent is authorized to contract for any and all types of health care
                   services and facilities in the name of and on behalf of the principal and to bind the
                   principal to pay for all such services and facilities, and to have and exercise those
                   powers over the principal’s property as are authorized under the statutory property
                   power, to the extent the agent deems necessary to pay health care costs; and the
                   agent shall not be personally liable for any services or care contracted for on behalf
                   of the principal.” 755 ILCS 45/4-10(c) (West 2012).
¶ 33       Specifically, section 4-10(c) authorizes the agent to “make any and all health care
       decisions on behalf of the principal,” and, importantly, to “sign and deliver all instruments,
       negotiate and enter into all agreements and do all other acts reasonably necessary to implement


                                                   -8-
       the exercise of the powers granted” by the health-care power of attorney. Id. This extends to
       making decisions on medical care, medications, administering food or fluid, admitting and
       discharging the principal from care facilities, and the like, and contracting with providers for
       the services allowed under the power of attorney. 755 ILCS 45/4-10(c)(1)-(3) (West 2012).
¶ 34       When we interpret a statutory provision, the cardinal rule, to which all others are
       subordinate, is to ascertain and give effect to the legislature’s intent in enacting the statute.
       Gurba v. Community High School District No. 155, 2014 IL App (2d) 140098, ¶ 38. The best
       indication of the legislature’s intent is the actual language used in the statute, given its plain
       and ordinary meaning. Id. If the language is clear and unambiguous, it must be applied as
       written and without resort to any of the other aids of statutory interpretation. Ponto v. Levan,
       2012 IL App (2d) 110355, ¶ 49.
¶ 35       While the Power of Attorney Law is wide ranging, it is clear that the purpose of the law is
       to allow the agent to make all health-care decisions on behalf of the principal just as if the
       principal him- or herself were making them. This includes, expressly, the power to enter into
       necessary contracts for the provision of the health-care services. See 755 ILCS 45/4-10(c)(3)
       (West 2012). The parties do not challenge any provisions of the Power of Attorney Law as
       being ambiguous; likewise, we perceive no ambiguity.
¶ 36       Plaintiff contends that the Power of Attorney Law limits the agent’s powers “to health care
       decisions, to contract for health care services and facilities and to bind the principal to pay for
       all such services and facilities.” Plaintiff concludes that Kahanic “did not have authority to
       agree to arbitrate claims unrelated to payment for health care services and facilities.” We
       disagree.
¶ 37       Plaintiff limits his reading of the Power of Attorney Law to section 4-10(c)(3), which does
       state that the agent has the authority to arrange for health-care services and “to bind the
       principal to pay for all such services and facilities, and to have and exercise those powers over
       the principal’s property as are authorized under the statutory property power, to the extent the
       agent deems necessary to pay health care costs.” 755 ILCS 45/4-10(c)(3) (West 2012). We
       note that plaintiff relies on a truncated portion of section 4-10(c)(3), which actually ends with
       the clause, “and the agent shall not be personally liable for any services or care contracted for
       on behalf of the principal.” Id.; see also supra ¶ 32. However, section 4-10(c) provides that the
       “agent may sign and deliver all instruments, negotiate and enter into all agreements and do all
       other acts reasonably necessary to implement the exercise of the powers granted to the agent.”
       755 ILCS 45/4-10(c) (West 2012); see also supra ¶ 32. Further, section 4-10(c) states that the
       specific power in subsection (c)(3) is provided “[w]ithout limiting the generality” of that
       broader power. 755 ILCS 45/4-10(c) (West 2012); see also supra ¶ 32. Clearly, then, an agent
       is not limited to matters of payment and may do anything reasonably necessary to implement
       and exercise the agent’s powers under the power of attorney.
¶ 38       Thus, we hold that the statement, “[t]he agent may sign and deliver all instruments,
       negotiate and enter into all agreements and do all other acts reasonably necessary to implement
       the exercise of the powers granted to the agent,” sets forth the scope of the agent’s powers,
       unless expressly limited in the power-of-attorney instrument itself, and that it means what it
       says. The agent may enter into agreements necessary to carry out his or her duties on behalf of
       the principal.
¶ 39       In this case Kahanic, acting as plaintiff’s agent and attorney-in-fact, entered into an
       agreement for defendant to provide living quarters and health-care-related services for

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       plaintiff. The agreement included an arbitration provision. Acceptance of the arbitration
       provision, an integral part of the establishment contract, was a prerequisite to admission into
       defendant’s facility. Under section 4-10(c), Kahanic was allowed to bind plaintiff to the
       establishment contract, including the arbitration provision, in order to secure plaintiff’s
       placement at defendant’s facility. Accordingly, the trial court erred in determining that binding
       plaintiff to the arbitration provision was outside the scope of Kahanic’s powers as plaintiff’s
       agent and attorney-in-fact.
¶ 40       We note that the general rule limits the scope of a health-care power of attorney to matters
       involving the principal’s health care and that the agent is given no authority over the
       principal’s property or financial matters. In re Estate of Stahling, 2013 IL App (4th) 120271,
       ¶ 26. With that said, however, health-care decisions, such as placement in an assisted-living
       facility, are not so cut and dried. Several recent cases, albeit from our sister states, demonstrate
       a clear trend of holding that health-care decisions that encompass collateral issues, such as the
       acceptance of an arbitration clause, may still be considered to be legitimate health-care
       decisions under the authority granted by a health-care power of attorney.
¶ 41       In Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581 (Ky. 2012), the Kentucky Supreme
       Court considered whether a health-care power of attorney granted the power to bind the
       principal to an arbitration agreement. The court reasoned that, “where an agreement to arbitrate
       is presented to the patient as a condition of admission to the nursing home, courts have held
       that the authority incident to a health-care durable power of attorney includes the authority to
       enter such an agreement.” Id. at 593 (citing cases). However, where “the arbitration agreement
       is not a condition of admission to the nursing home, but is an optional, collateral agreement,
       courts have held that authority to choose arbitration is not within the purview of a health-care
       agency,” because “agreeing to arbitrate is not a ‘health care’ decision.” Id. (citing cases). The
       court held that, because the arbitration provision was not a requirement for admission to the
       nursing home, the patient’s agent did not have the authority to consent to arbitration, because
       “there was no reasonable necessity to do so.” Id. at 594.
¶ 42       Likewise, in Dickerson v. Longoria, 995 A.2d 721, 739 (Md. 2010), the court drew a
       distinction between legal decisions and health-care decisions. The court explained:
                “The decision to sign a free-standing arbitration agreement is not a health care decision
                if the patient may receive health care without signing the arbitration agreement. In such
                a case, the decision primarily concerns the legal rights of the patient with respect to
                resolving legal claims. If signing the arbitration agreement is necessary to receive
                health care, then the decision to sign the agreement is a health care decision because the
                receipt of health care depends on whether the patient agrees to arbitrate his or her
                claims. In that case, the decision to sign the arbitration agreement is effectively a
                decision about where and whether to receive health care, either from a facility that
                requires the patient to sign an arbitration agreement, from a facility that does not
                impose such a requirement, or from no facility at all.” Id.
¶ 43       The Tennessee Supreme Court also reached a similar result in Owens v. National Health
       Corp., 263 S.W.3d 876 (Tenn. 2008). There, the court reasoned that the patient’s power of
       attorney authorized the agent to make health-care decisions, which included any care,
       treatment, service, or procedure to treat, diagnose, or maintain a patient’s physical or mental
       condition. Id. at 883-84. The court further determined that the decision whether to admit a
       patient to a nursing home was a health-care decision. Id. The court held that “an

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       attorney-in-fact acting pursuant to a durable power of attorney for health care may sign a
       nursing-home contract that contains an arbitration provision because this action is necessary to
       ‘consent *** to health care.’ [Citation.]” Id. at 884.
¶ 44       In similar fashion, courts have also held that, where the arbitration provision is optional or
       otherwise not necessary to gain admission to a long-term-care facility, the agent acting
       pursuant to a health-care power of attorney is not authorized to sign the arbitration provision
       and the patient cannot be bound by the agent’s action. Life Care Centers of America v. Smith,
       681 S.E.2d 182, 185-86 (Ga. Ct. App. 2010); Koricic v. Beverly Enterprises-Nebraska, Inc.,
       773 N.W.2d 145, 151 (Neb. 2009). Finally, a court in Texas held that an agent could not bind
       the principal if the agent executed the agreement before the power of attorney became
       effective. Texas Cityview Care Center, L.P. v. Fryer, 227 S.W.3d 345, 352 (Tex. App. 2007).
       As well, the Fryer court noted that the medical power of attorney at issue there had not
       intended the agent to make legal decisions, like agreeing to arbitration, rather than health-care
       decisions. Id.
¶ 45       The foregoing cases clearly develop the principle that, if an arbitration provision is
       required for admission to a care facility then it becomes part and parcel of the health-care
       decision to admit the patient to the facility. Here, consent to the arbitration provision was an
       integral part of plaintiff’s admission to defendant’s facility. The arbitration provision was
       neither optional nor freestanding. Ping, Dickerson, and Owens all directly support the result
       we have reached: plaintiff’s power of attorney authorized Kahanic to bind plaintiff to the
       arbitration provision because it was part of the establishment contract that gained plaintiff
       admission into defendant’s facility. Similarly, Smith, Koricic, and Fryer indirectly support our
       result because they distinguish between a decision on an arbitration provision that is required
       for admission to a nursing-care facility, recognizing it as a health-care decision, and a decision
       on an arbitration provision that is optional or not required for admission.
¶ 46       We note that, in Curto v. Illini Manors, Inc., 405 Ill. App. 3d 888, 894 (2010), the court
       held that a wife lacked the authority to sign an arbitration agreement when admitting her
       husband to a residential nursing home. In that case, however, there was no evidence that the
       husband had executed a power of attorney in favor of his wife. Id. at 892-93. Additionally, and
       in harmony with the persuasive foreign authority discussed above, the arbitration agreement
       was separate from the contract for admission to the facility. Id. at 890. Thus, Curto may be
       understood to hew to the line of cases holding that a separate arbitration agreement is outside
       the power of the agent exercising the right to make health-care decisions (although the fact that
       there was no power of attorney granted in Curto also serves to distinguish the case).
¶ 47       As a final matter, we note that the Nursing Home Care Act (210 ILCS 45/1-101 et seq.
       (West 2012)) contemplates that a patient must execute a written contract with a facility. 210
       ILCS 45/2-202 (West 2012). Section 2-202 states:
                   “(a) Before a person is admitted to a facility, or at the expiration of the period of
               previous contract, or when the source of payment for the resident’s care changes from
               private to public funds, or from public to private funds, a written contract shall be
               executed between a licensee and the following in order of priority:
                       (1) the person, or if the person is a minor, his parent or guardian; or
                       (2) the person’s guardian, if any, or agent, if any, as defined in Section 2-3 of
                   the Illinois Power of Attorney Act [(755 ILCS 45/2-3 (West 2012))]; or


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                        (3) a member of the person’s immediate family.
                   An adult person shall be presumed to have the capacity to contract for admission to
               a long term care facility unless he [satisfies exceptions not applicable here].” 210 ILCS
               45/2-202(a) (West 2012).
       Thus, the Nursing Home Care Act expressly contemplates that an agent holding a power of
       attorney may sign the contract admitting the principal to the facility. This, too, bolsters our
       conclusion that Kahanic was authorized to sign the establishment contract, including the
       arbitration provision, on behalf of plaintiff.
¶ 48       We note that a recent amendment to the Power of Attorney Law added a definition of
       “health care agent” that appears to be distinct from the definition of “agent” under section 2-3
       of the Power of Attorney Law (755 ILCS 45/2-3 (West 2012)) (which the Nursing Home Care
       Act adopted (210 ILCS 45/2-202(a)(2) (West 2012))):
               “an individual at least 18 years old designated by the principal to make health care
               decisions of any type, including, but not limited to, anatomical gift, autopsy, or
               disposition of remains for and on behalf of the individual. A health care agent is a
               personal representative under state and federal law. The health care agent has the
               authority of a personal representative under both state and federal law unless restricted
               specifically by the health care agency.” Pub. Act 98-1113 (eff. Jan. 1, 2015) (adding
               755 ILCS 45/4-4(e)(5)).
¶ 49       We note the amendment for purposes of completeness, but the amendment does not affect
       our analysis here. Rather, it is sufficient to note that the Nursing Home Care Act supports our
       construction of the Power of Attorney Law under the facts of this case.
¶ 50       For all of the foregoing reasons, then, we conclude that the trial court erred in holding that
       the health-care power of attorney did not grant Kahanic the authority to execute the arbitration
       provision.

¶ 51                        C. Enforceability Under the Federal Arbitration Act
¶ 52       Defendant last argues that the Federal Arbitration Act provides an alternate avenue by
       which the trial court could have compelled arbitration in this matter. While we have held above
       that, as a matter of state law, the arbitration provision in the establishment contract is
       enforceable, this holding would obviously apply to plaintiff’s common-law tort claims.
       However, plaintiff has also alleged claims under the Nursing Home Care Act, and it is a little
       less clear whether they may be arbitrated. Section 3-606 of the Nursing Home Care Act (210
       ILCS 45/3-606 (West 2012)) provides that “[a]ny waiver by a resident or his legal
       representative of the right to commence an action under Sections 3-601 through 3-607,
       whether oral or in writing, shall be null and void, and without legal force or effect.” Section
       3-607 of the Nursing Home Care Act (210 ILCS 45/3-607 (West 2012)), in turn, provides:
                   “Any party to an action brought under Sections 3-601 through 3-607 shall be
               entitled to a trial by jury and any waiver of the right to a trial by jury, whether oral or in
               writing, prior to the commencement of an action, shall be null and void, and without
               legal force or effect.”
       These provisions appear to forbid a contractual specification for the arbitration of any claims
       brought under the Nursing Home Care Act.


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¶ 53       In Fosler, 398 Ill. App. 3d at 573, this court held that sections 3-606 and 3-607 of the
       Nursing Home Care Act conflicted with and were preempted by the Federal Arbitration Act.
       Likewise, our supreme court has held that “the public policy behind the antiwaiver provisions
       of sections 3-606 and 3-607 of the Nursing Home Care Act are not ‘grounds as exist at law or
       in equity for the revocation of any contract’ within the meaning of section 2 of the [Federal
       Arbitration Act] (9 U.S.C. § 2 (2000)).” Carter, 237 Ill. 2d at 50. Accordingly, the supreme
       court has definitively held that the Nursing Home Care Act’s prohibition of arbitration
       agreements between a nursing home and a resident was precluded by the Federal Arbitration
       Act. Id. at 47, 50. Thus, the claims brought pursuant to the Nursing Home Care Act are also
       arbitrable pursuant to the arbitration provision in the establishment contract.

¶ 54                                      III. CONCLUSION
¶ 55      For the foregoing reasons, the judgment of the circuit court of Kane County is reversed.

¶ 56      Reversed.




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