JAMES A. WELCH ET AL. v. OAKTREE HEALTH AND REHABILITATION CENTER LLC D/B/A CHRISTIAN CARE CENTERS OF MEMPHIS ET AL.
No. W2020-00917-SC-R11-CV
IN THE SUPREME COURT OF TENNESSEE AT JACKSON
November 9, 2022 Session; Filed August 31, 2023
HOLLY KIRBY, J.
Tennessee‘s Durable Power of Attorney for Health Care Act,
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed; Remanded to the Court of Appeals
HOLLY KIRBY, J., delivered the opinion of the court, in which ROGER A. PAGE, C.J., and SHARON G. LEE, JEFFREY S. BIVINS, and SARAH K. CAMPBELL, JJ., joined.
Cameron C. Jehl, Carey L. Acerra, Deena K. Arnold, and Eric H. Espey, Memphis, Tennessee, and Deborah Truby Riordan, Little Rock, Arkansas, for the appellant, James A. Welch, Next of Kin and Administrator ad Litem of Estate of David Neil Welch, deceased, аnd on behalf of the wrongful death beneficiaries of David Neil Welch.
Craig C. Conley, Quinn N. Carlson, and W. Preston Battle IV, Memphis, Tennessee, and Christy Tosh Crider, Nashville, Tennessee, for the appellees, Oaktree Health and Rehabilitation Center, LLC d/b/a Christian Care Center of Memphis, Care Centers Management Consulting, Inc., and Christian Care Center of Memphis, LLC.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The decedent in this case, David Welch (“David“), was the brother of Plaintiff/Appellant James Welch (“James“), the administrator of David‘s estate.1 David was diagnosed with Down syndrome shortly after he was born; he could not read and had difficulty understanding and following instructions. David had no formal education, and James described him as having “the mind of a two-year-old.”
In 2012, David needed cataract surgery, and James helped his brother obtain care. The physician scheduled to perform the surgery required James to get a health care power of attorney for David. James printed out an online durable power of attorney for health care (“POA“) form and filled it out, listing James as David‘s health care agent and giving James authority to make David‘s health care decisions. At James‘s direction, David “scratched his name” on the signature line on the last page. The POA also had the signatures of two witnesses who declared under penalty of perjury that the principal, David, was known to them, signed or acknowledged the document in their presence, and “appears to be of sound mind and under no duress, fraud or undue influence.”
James used the POA form for David‘s eye surgery and afterward continued to use it for other health care providers for David. James was never appointed as David‘s guardian or conservator. No physician appointed James as David‘s health care agent or surrogate.
In November 2016, James sought to admit David to a residential nursing home facility in Memphis, Tennessee, Defendant/Appellees Oaktree Health and Rehabilitation Center LLC, d/b/a Christian Care Center of Memphis (“Christian Care“). Christian Care was aware David had been diagnosed with Down syndrome.
The Arbitration Agreement required the representative of the resident to provide Christian Care with a copy of “the document creating the agency or guardianship.” Both parties agree that James would have shown the POA form to Christian Care in the admission process.
David lived at Christian Care for several months. On April 10, 2017, David was transferred to Saint Francis Hospital. He died four days later, at age 62.
On February 7, 2018, James, in his capacity as administrator of David‘s estate (“Plaintiff“), sued Christian Carе and related entities (collectively, “Defendants“) in the Circuit Court in Shelby County, Tennessee.2 The complaint alleges health care liability, ordinary negligence, and wrongful death. It seeks compensatory and punitive damages and includes a demand for a jury trial.
In response, the Defendants filed a motion to compel arbitration based on the Arbitration Agreement. The trial court let the parties engage in discovery related to arbitration.3
In response to the motion to compel arbitration, Plaintiff asserted that James had no authority to sign the Arbitration Agreement because David did not have the mental capacity to appoint an agent when David executed the POA. In support, Plaintiff submitted David‘s medical records, as well as an expert affidavit and deposition testimony.4
In reply, Defendants argued that the trial court could not look beyond the face of the POA to consider evidence of David‘s mental capacity. They based this argument on
The trial court entered an order stating that it would consider evidence on whether David had the mental capacity to execute the POA. After doing so, it entered a second order denying the motion to compel arbitration. The trial court found by clear and convincing evidence that David lacked the requisite mental capacity to execute the POA. As a result, the POA was invalid, and James did not have authority to execute the Arbitration Agreement on David‘s behalf.
Defendants appealed to the Court of Appeals.6 On appeal, they raised two issues: (1) whether the trial court erred in looking beyond the face of the POA to determine
whether David had the mental capacity to execute it; and (2) whether the trial court erred in finding clear and convincing evidence that David lacked the requisite mental capacity when he signed the POA.
The Court of Appeals rеversed the trial court on the first issue. Welch v. Oaktree Health & Rehab. Ctr. LLC., No. W2020-00917-COA-R3-CV, 2022 WL 589926 (Tenn. Ct. App. Feb. 28, 2022), perm. app. granted (Tenn. Aug. 4, 2022). As a threshold determination, the intermediate appellate court concluded that the POA was not governed by the Durable Power of Attorney for Health Care Act,
On the merits, based on
Plaintiff then sought permission to appeal to this Court, arguing that thе Court of Appeals erred in holding that the trial court could not consider evidence that David lacked the required mental capacity to execute the POA. We granted permission to appeal.
ANALYSIS
In this appeal, we determine whether the immunity provisions in Tennessee statutes governing health care decisions apply to arbitration agreements executed with admission to a health care facility. We first consider a preliminary matter and then the merits of the parties’ arguments.
I. Preliminary
As a preliminary matter, we address the Court of Appeals’ choice to decide the case based on a statute other than the statute the parties cited to the trial court and argued on appeal, without giving the parties an opportunity to address the question of which statute is operative.
On appeal to the Court of Appeals, the Defendant‘s argument was based on
Nevertheless, without raising the question to the parties or asking for supplemental briefs, the Court of Appeals decided the appeal based on the Health Care Decisions Act, not the Durable Power of Attorney for Health Care Act. Welch, 2022 WL 589926, at *7. It commented that both immunity provisions had substantially similar language and would yield the same result. Id. at *10 (citing
On appeal to this Court, Plaintiff argues that the Court of Appeals exceeded its scope of review by reversing the trial court‘s decision based on the immunity provision in the Health Care Decisions Act instead of the statute briefed by the parties, citing the discussion of the role of appellate courts in State v. Bristol, 654 S.W.3d 917 (Tenn. 2022). Defendants agree that the Court of Appeals made its decision based on the Health Care Decisions Act without giving the parties an opportunity to address the question of which Act applies, but say this was a proper exercise of the Court of Appeаls’ discretion, and the result the appellate court reached would be correct under either Act.
In Bristol, the intermediate appellate court granted relief on an unpreserved and unpresented issue without giving the parties notice and an opportunity to be heard on that issue. Id. at 923. On appeal, this Court acknowledged that, in limited circumstances, appellate courts have discretion to consider unpresented or unpreserved issues. Id. at 926. On the whole,
Regardless, Bristol stressed that when an appellate court exercises its discretion to consider an issue not properly presented, “it must give the parties ‘fair notice and an opportunity to be heard.‘” Id. (citations omitted). The Court explained:
The requirement that an appellate court give parties notice and an opportunity to be heard is especially important when, as here, an appellate court undertakes to review an issue that was neither preserved below nor presented on appeal. Reviewing an unpreserved and unpresented issue presents an especially strong risk of unfairness and prejudice, since the party who stands to lose on that issue would have no inkling that the issue was in play and therefore no reason to develop a record on the issue, research it, or address it in its briefs. Such review also presents a serious risk of error by depriving the court of the adversarial presentation that is central to the truthfinding function of our judicial system. Affording the parties notice that the appellate court intends to address an issue and an opportunity to be heard on that matter helps mitigate those risks and protect the weighty interests that the party-presentation principle and preservation requirements are designed to foster.
In this case, the Defendant argued that the trial court erred in looking beyond the four corners of the POA to determine whether David Welch was competent to execute it. Its argument was based entirely on Owens and
Certainly, the parties’ failure to argue that the Health Care Decisions Act is the operative statute did not bind the appellate court; it could fairly question whether it should consider the Health Care Decisions Act instead of the Durable Power of Attorney for Health Care Act. Bristol, 654 S.W.3d at 925 (explaining that an appellate court is “not precluded from supplementing the contentions оf counsel through [its] own deliberation and research“) (citation omitted); see also Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991) (explaining that “[w]hen an issue is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the
independent power to identify and apply the proper construction of governing law“). If an appellate court comes to believe after oral argument that the parties have focused on the wrong statute, it can and should take steps to apply the correct law.
But, barring unusual circumstances, those steps should normally include efforts to allow the parties to weigh in. We stop short of saying the Court of Appeals was required to ask the parties to address
Now the question of the Health Care Decisions Act has been teed up, and the parties have had an opportunity to address it in their briefs and in oral argument. Before this Court, both take the position that the result should be the same regardless of which Act applies. Plaintiff argues that the trial court had authority under either Act to consider evidence on whether David lacked the requisite mental capacity to execute the POA, so we should reverse the holding of the Court of Appeals. Defendants argue that the immunity provisions in both Acts prohibit the trial court from considering evidence of David‘s competеnce, so we should affirm the holding of the Court of Appeals.
We will address the immunity provisions in both Acts in our analysis of whether the trial court was precluded from considering evidence of David‘s mental capacity.
II. Overview of Normal Procedure Absent Immunity
As our Court of Appeals has observed, “An arbitration agreement is, of course, a contract.” Elite Emergency Servs., LLC v. Stat Sols., LLC, No. M2008-02793-COA-R3-CV, 2010 WL 845392, at *7 (Tenn. Ct. App. Mar. 10, 2010). Arbitration “is a consensual proceeding in which the parties select decision-makers of their own choice and then voluntarily submit their disagreements to those decision-makers for resolution in lieu of adjudicating the dispute in court.” Id. at *8 (citations omitted).
In Tennessee, arbitration agreements are generally enforceable unless there are grounds to revoke the agreement. Id. (citations omitted). The Court of Appeals has outlined the normal procedure at the trial court level when a motion to compel arbitration is opposed on the ground that the arbitration agreement is unenforceable:
When one of the parties to the arbitration agreement opposes a motion to compel arbitration, the trial court must decide certain gateway matters, such as whether the parties have a valid arbitration agreement at all. Similar to a motion for summary judgment, resolving these gateway issues frequently requires the consideration of matters outside of the pleadings. However, a motion to compel arbitration differs from either a motion to dismiss or a motion for summary judgment, because the trial court must go on to determine whether the arbitration agreement is in fact enforceable before the motion to compel arbitration can be decided. . . .
In considering opposition to a motion to compel arbitration, a court must distinguish between those arguments attacking the agreement which can be resolved solely as a matter of law and those arguments which require resolution of factual issues. While the former category mirrors a case in which a court is called upon to interpret contractual language and apply it to uncontested facts, thе latter requires the trial court
to receive evidence and resolve the relevant disagreements before deciding the motion. ***
The trial court‘s role, then, is not just to determine if there is an issue regarding enforceability. It must also determine if the agreement is in fact enforceable. . . . [I]f the party challenging the arbitration agreement interposes such defenses as . . . lack of authority, it is up to the trial court to resolve such issues and make a clear ruling as to whether or not the agreement is enforceable. Therefore, the trial court must proceed expeditiously to an evidentiary hearing when it faces disputed issues of fact that are material to
a party‘s motion to compel arbitration; it may not decline to resolve the question until trial of the underlying case.
Id. (cleaned up) (citations omitted).9
Here, the trial court below followed this normal procedure and determined that the Arbitration Agreement was unenforceable because James did not have authority to execute it on David‘s behalf. “An agent has the powеr to make contracts that are binding on a principal . . . when the agent has actual authority, express or implied.” 12 Williston on Contracts § 35:11 (4th ed.). James‘s authority to execute the Arbitration Agreement here derives from the POA David signed, appointing James as his agent. Execution of a power of attorney “creates a principal-agent relationship.”10 Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743, 749 (Tenn. 2007) (citing Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296–97 n.1 (Tenn. Ct. App. 2001)).
A “principal‘s capacity is requisite to a relationship of agency.” Restatement (Third) Of Agency § 3.04 cmt. b (2006). “[T]o have an agency relationship under a power of attorney, the principal must have the capacity to contract.” Rawlings, 78 S.W.3d at 296 n.1 (citing Testa v. Roberts, 542 N.E.2d 654, 658 (Ohio Ct. App. 1988); In re Thames, 544 S.E.2d 854, 856–57 (S.C. Ct. App. 2001)). Whether a “party whose act is called in question” has the requisite mental capacity is a “question of fact” to be determined from evidence. Nashville, C. & St. L.R. Co. v. Brundige, 84 S.W. 805, 805 (Tenn. 1905). Here, after an evidentiary hearing, the trial court determined that David did not have the required mental capacity to designate James as his agent.
Thus, the trial court below followed the normal procedure when a motion to compel arbitration is oppоsed on the basis that the arbitration agreement is unenforceable because the agent who executed it was without authority to do so.
As background, it is helpful to explain briefly how Tennessee came to have two alternative statutes that potentially apply to durable powers of attorney for health care such as the POA here.
Before 1990, it was unclear whether a durable power of attorney “could be used to authorize a proxy decision-maker for an incompetent patient.” Charles M. Key & Gary D. Miller, The Tennessee Health Care Decisions Act A Major Advance in the Law of Critical Care Decision Making, Tenn. B.J., Aug. 2004, at 25, 26. In 1990, Tennessee‘s legislature adopted the Durable Power of Attorney for Health Care Act, which authorized the use of durable powers of attorney for health care and set out requirements for them. Id.; see
Despite enactment of the Durable Power of Attorney for Health Care Act, difficulties remained in securing valid, executed advance directives. Id. at 28. In 2004, with intent “to simplify formal requirements” for such directives, Tennessee‘s legislature adopted the Tennessee Health Care Decisions Act. Id.; see
The Health Care Decisions Act outlines how a competent adult may execute a written “advance directive”12 for health care that authorizes an “agent”13 to make health
care decisions should the adult lose the capacity to do so. See
The Health Care Decisions Act also created alternatives to written powers of attorney for health care, less formal methods for proxy decision-making. A competent
Notably, the Health Care Decisions Act did not repeal existing statutes on durable powers of attorney for health care, including the Durable Power of Attorney for Health Care Act.15 Instead, the Health Care Decisions Act provides that “durable powers of attorney for health care executed prior to July 1, 2004 will be governed by the old law, as will instruments executed on or after July 1, 2004 that ‘evidеnce an intent’ to be governed
by the old law.” Key & Miller, supra, at 28 n.22. Thus, both Acts remain in effect under redundant savings provisions. See
The parties’ arguments to the trial court were based on the immunity provision in the Durable Power of Attorney for Health Care Act, and this statute was applied in the footnote passage in Owens v. National Health Corporation on which the Defendants rely. 263 S.W.3d at 889 n.4. For those reasons, we first consider the immunity provision in the Durable Power of Attorney for Health Care Act, then its application in Owens. After that we consider the immunity provision in the Health Care Decisions Act, which was applied by the Court of Appeals.
a. Durable Power of Attorney for Health Care Act
The immunity provision in the Durable Power of Attorney for Health Care Act states:
Subject to any limitations stated in the durable power of attorney for health care, and, subject to subsection (b) and
§§ 34-6-210 -- 34-6-212, a health care provider is not subject to criminal prosecution, civil liability or professional disciplinary action except to the same extent as would be the
case if the principal, having had the capacity to give informed consent, had made the health care decision on the principal‘s own behalf under like circumstances, if the health care provider relies on a health care decision and both of the following requirements are satisfied:
(1) The decision is made by an attorney in fact who the health care provider believes in good faith is authorized under this part to make the decision; and
(2) The health care provider believes in good faith that the decision is not inconsistent with the desires of the principal as expressed in the durable power of attorney for health care or otherwise made known to the health care provider, and, if the decision is to withhold or withdraw health care necessary to keep the principal alive, the health care provider has made a good faith effort to determine the desires of the principal to the extent that the principal is able to convey those desires to the health care provider and the results of the effort are made a part of the principal‘s medical records.
The Defendants argue that this immunity provision alters the normal procedure at the trial court level when a party challenges a motion to compel arbitration by interposing a defense such as lack of authority. Under
This issue requires us to construe
must be reasonable in light of the statute‘s purposes and objectives. Beard v. Branson, 528 S.W.3d 487, 496 (Tenn. 2017) (citing Scott v. Ashland Healthcare Ctr., Inc., 49 S.W.3d 281, 286 (Tenn. 2001)).
Subject to limitations not applicable here,
The grant of immunity from civil liability in
Defendants argue in their briefs that the two good faith requirements are met here: Christian Care believed in good faith that James was authorized to execute the Arbitration Agreement on David‘s behalf, and they believed in good faith that this decision was not inconsistent with David‘s desires. See
For purposes of this appeal, we assume all of this to be true. Defendants fail to explain, however, how they “relied” on James‘s decision to execute the Arbitration Agreement.
Here, it is undisputed that David‘s admission to Christian Care was not conditioned on execution of the Arbitrаtion Agreement; Christian Care would have admitted David even if James had refused to sign the arbitration materials in the general admission documents.
This stands in contrast with many other types of health care decisions. We find an example in the text of
In addition, the text of
Here, the complaint seeks damages based on wrongful death, negligence, and health care liability theories. None of the claims arise out of James‘s decision to execute the Arbitration Agreement. This Court has said, “Arbitration agreements do not limit liability, but instead designate a forum that is alternative to and independent of the judicial forum.” Harvey ex rel. Gladden v. Cumberland Tr. & Inv. Co., 532 S.W.3d 243, 264 (Tenn. 2017) (quoting Buraczynski v. Eyring, 919 S.W.2d 314, 319 (Tenn. 1996)).
Indeed, the Arbitration Agreement itself says it does not alter Christian Care‘s duties: “[T]his Arbitration Agreement does not change the Facility‘s duty to use reasonable care in caring for residents and does not limit liability for any breach of that duty, but merely shifts certain disputes between the parties to a different forum . . . .” It says that the potential damages are unaffected by using arbitration as the forum: “The parties agree that damages awarded, if any, in an arbitration cоnducted pursuant to this Arbitration Agreement shall be determined in accordance with the provisions of the state or federal law applicable to a comparable civil action, including any prerequisites to, credit against, or limitations on, such damages.”
Moreover, the Durable Power of Attorney for Health Care Act only provides immunity from “criminal prosecution, civil liability or professional disciplinary action.”
the statute offers protection from liability or prosecution—not from litigating in a particular forum.
Thus, considering the plain language of
b. Owens footnote
In support of their argument that they are entitled to statutory immunity, Defendants rely on language in a footnote to this Court‘s past decision in Owens v. National Health Corporation, in which the Court cited and applied
In Owens, an agent acting under a durable power of attorney for health care signed an arbitration agreement as a precondition for admission of the principal to a nursing home. Id. at 880–81. The primary issue on appeal was “whether a durable power of attorney for health care authorized the attorney-in-fact to enter into an arbitration agreement as part of a contract admitting the principal to a nursing home and thereby to waive the principal‘s right to trial by jury.” Id. at 879. Owens answered that question in the affirmative, holding that an agent by dint of a power of attorney for health care had authority to
Three months later, in response to the defendants’ petition to rehear, the Owens Court entered an order granting the petition in part and denying it in part. Id. at 890–91. The order stated:
In their petition, the appellees аllege that the Court improperly allowed discovery as to the principal‘s competence to sign the power of attorney.
Upon due consideration, the Court concludes that appellees’ petition to rehear is well-taken as to this issue and should therefore be granted. The petition to rehear is denied as to the remainder of the issues.
It appearing to the Court from appellees’ Petition to Rehear and appellant‘s response that footnote four of its Opinion filed November 8, 2007, should be modified . . . .
Id. at 891. The Court then modified footnote four of the opinion to read:
The plaintiff also questions whether King was incompetent to sign the nursing-home agreement when Daniel executed the contract pursuant to the power of attorney. The plaintiff asserts that the trial court should have permitted discovery regarding the circumstances surrounding the execution of both the nursing-home contract and the power of attorney, which was executed only twenty-one days later. We agree that discovery concerning whether King was incompetent to sign the nursing-home agreement should be permitted on remand. Discovery should not be permitted, however, concerning the validity of the power of attorney or the circumstances surrounding its execution. See
Tenn. Code Ann. § 34-6-208 (providing immunity to health care providers who rely on decisions “made by an attorney in fact who the health care provider believes in good faith is authorized” to make health care decisions).
Id. at 889 n.4 (emphasis added).
Based on the language in footnote four as modified, the Defendants correctly argue, and the Court of Appeals correctly noted, that Owens prohibited the trial court from allowing discovery on the validity of the durable power of attorney for health care or the circumstances surrounding its execution. In doing so, the Court cited the immunity provision in the Durable Power of Attorney for Health Care Act. Id. (citing
We cannot consider the Owens Court‘s reasoning on
Court found that the defendants in Owens “relied” on the agent‘s decision to agree to arbitration, within the meaning of
However, as to whether the civil liability in Owens from which the provider sought immunity was related to or arose out of the health care decision, we see no difference between Owens and this case. Id. In Owens, the complaint asserted claims “for negligence; gross negligence; willful, wanton, reckless, malicious and/or intentional conduct; medical malpractice; and violations of the Tennessee Adult Protection Act.” Owens, 263 S.W.3d at 881. None of these claims seem related to the arbitration agreement. And again, this Court has said that arbitration agreements do not affect liability, they only designate an alternative forum. Harvey, 532 S.W.3d at 264. The parts of the arbitration agreement quoted in Owens do not say otherwise, but the opinion does not reproduce the entire agreement. 263 S.W.3d at 880–81.
In short, with no reasoning to go on, the holding in footnote four of Owens on
c. Health Care Decisions Act
The immunity provision in the Health Care Decisions Act,
(a) A health care provider or institution acting in good faith and in accordance with generally accepted health care standards applicable to the health care provider or institution is not subject to civil or criminal liability or to discipline for unprofessional conduct for:
(1) Complying with a health care decision of a person apparently having authority to make a health care decision for a patient, including a decision to withhold or withdraw health care . . . .
offers statutory immunity from civil liability to health care providers who act in “good faith.” The language in
In particular, while the Durable Power of Attorney for Health Care Act offers statutory immunity to a health care provider who “relies on a health care decision” by an agent,
As with the Durable Pоwer of Attorney for Health Care Act, the text of
Defendants in this case do not meet the requirements for the statutory immunity offered in
Moreover, similar to the Durable Power of Attorney for Health Care Act, the Health Care Decisions Act provides immunity only from “civil or criminal liability or to disciplinе for unprofessional conduct.”
Thus, considering the plain language of
In sum, Defendants do not meet the requirements for statutory immunity from civil liability in either the Durable Power of Attorney for Health Care Act or the Health Care Decisions Act. See
CONCLUSION
For the foregoing reasons, we reverse the Court of Appeals’ ruling that the trial court in this case erred in considering evidence on the circumstances surrounding execution of the durable power of attorney for health care and whether the principal lacked the requisite mental capacity to sign the document. We remand back to the Court of Appeals for consideration of whether the trial court erred in finding clear and convincing evidence that David lacked the requisite mental capacity when he signed the durable power of attorney for health care, and any other issues raised on appeal not pretermitted by our holding in this opinion. Costs of this appeal are taxed to the appellees, Oaktree Health and Rehabilitation Center, LLC d/b/a Christian Care Center of Memphis, Care Centers Management Consulting, Inc., and Christian Care Center of Memphis, LLC, for which execution may issue if necessary.
HOLLY KIRBY, JUSTICE
Notes
On application of a party showing an agreement described in
§ 29-5-302 , and the opposing party‘s refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party; otherwise, the application shall be denied.
a power of attorney by which a principal designates another as the principal‘s attorney in fact in writing and the writing contains the words ‘This power of attorney shall not be affected by subsequent disability or incapacity of the principal,’ or ‘This power of attorney shall become effective upon the disability or incapacity of the principal,’ or similar words showing the intent of the principal that the authority conferred shall be exercisable, notwithstanding the principal‘s subsequent disability or incapacity.
(a) A durable power of attorney for health care entered into before July 1, 2004, under this part shall be given effect and interpreted in accord with this part.
(b) A durable power of attorney for health care entered into on or after July 1, 2004, that evidences an intent that it is entered into under this part shall be given effect and interpreted in accord with this part.
(c) A durable power of attorney for health care entered into on or after July 1, 2004, that does not evidence an intent that it is entered into under this part may, if it complies with the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18, be given effect as an advance directive under that act.
Any living will, durable power of attorney for health care, or other instrument signed by the individual, complying with the terms of title 32, chapter 11, and a durable power of attorney for health care complying with the terms of title 34, chapter 6, part 2, shall be given effect and interpreted in accord with those respective acts. Any advance directive that does not evidence an intent to be given effect under those acts, but that complies with this part may be treated as an advance directive under this part.
Id. at 889 (citing Berger v. Cantor Fitzgerald Sec., 942 F. Supp. 963, 966 (S.D.N.Y. 1996)).We are unable to resolve the question of whether the arbitration agreement is unconscionable due to the limited nature of the factual record. We therefore conclude that the case should be remanded to the trial court for further proceedings on that issue. The trial court, in its discretion, may allow the parties to conduct discovery.