[¶1] Ninety-three-year-old Aletha Boyd (Aletha) died following her discharge from Kindred Nursing and Rehabilitation—Wind River. Her daughter, Susan Boyd (Ms. Boyd), filed a wrongful death action against Kindred alleging that its negligence in caring for her mother caused her death. Kindred moved to compel arbitration pursuant to an alternative dispute resolution (ADR) agreement signed by Leanna Putnam, Aletha’s other daughter and representative under a power of attorney at the time of her admission into the facility. The district court denied the motion. Kindred appeals, claiming the district court erred in denying the motion to compel arbitration. We reverse and remand with instructions for the district court to order arbitration.
ISSUES
[¶2] The issues for this Court’s consideration are:
1. Whether Ms. Putnam had the authority to sign the ADR agreement on Aletha’s behalf and bind her to arbitration.1
2. Whether the ADR agreement is unconscionable.
3. Whether the ADR agreement lacks mutuality of assent and consideration in light of the provision incorporating the National Arbitration Forum Mediation Rules and Code of Procedure.2
FACTS
[¶3] Kindred Healthcare Operating, Inc. and Kindred Nursing Centers West, LLC owned and operated a nursing home facility in Riverton, Wyoming under the name Kindred Nursing and Rehabilitation—Wind River (Kindred). On January 8, 2010, Aletha Boyd was admitted to the facility. Prior to her admission, in September of 2001, Aletha had signed a durable general and medical power of attorney designating Ms. Putnam as her attorney in fact and agent. At the time of Aletha’s admission into the nursing home, Ms. Putnam signed the ADR Agreement at issue.
[¶4] The title of the agreement is:'
ALTERNATIVE DISPUTE RESOLUTION AGREEMENT (OPTIONAL)
The next line of the agreement states (emphasis in original):
(THIS AGREEMENT IS NOT A CONDITION OF ADMISSION TO OR CONTINUED RESIDENCE IN THE FACILITY)
[¶5] The agreement goes on to provide that the parties to the agreement, (“Kindred Nursing Centers West, LLC, [doing business as] Wind River Healthcare & Rehabilitation Center
THE PARTIES UNDERSTAND. ACKNOWLEDGE. AND AGREE THAT BY ENTERING INTO THIS AGREEMENT THEY ARE GIVING UP THEIR CONSTITUTIONAL RIGHT TO HAVE THEIR DISPUTES DECIDED BY A COURT OF LAW ....
It further states:
The Parties recourse to a court of law shall be limited to an action to enforce a binding arbitration decision entered in accordance with this Agreement or to vacate such a decision based on the limited grounds set forth in the Wyoming Uniform Arbitration Act, Wyo. Stat.- §§ 1-36-101 through 1-36-119. The parties agree that the speed, efficiency, and cost-effectiveness of the ADR process, together with their mutual undertaking to engage in that process, constitute good.and sufficient consideration for the acceptance and enforcement of this Agreement.
[¶6] Aletha remained in the nursing home until she was discharged on May 17, 2014. She died thirteen days later on May 30.‘ The death certificate listed the primary cause of death as dementia.
[¶7] Following Aletha’s death, the district court appointed Ms. Boyd as her personal representative for purposes of bringing a wrongful death action. On May 13, 2016, Ms. Boyd, as personal representative of her mother’s estate, submitted a notice of claim to the State of Wyoming’s Medical Review Panel in accordance with Wyo. Stat. Ann. § 9-2-1513 at seg.
[¶8] Kindred responded to the notice of claim, contending that the dispute was subject to the ADR agreement, and that therefore, pursuant to Wyo. Stat. Ann. § 9-2-1518(a),
[¶9] In response, Kindred filed a motion to compel arbitration. Kindred argued that when. Ms. Putnam signed the ADR agreement, she was authorized to act as Aletha’s legal and personal representative and had authority to sign the agreement. Kindred further asserted that Ms. Putnam’s decision to agree to arbitrate disputes concerning Ale-tha’s care was a health care decision within the meaning of the Wyoming Health Care
Decisions Act and Wyo. Stat. Ann. § 35-22-406. Anticipating a potential argument by Ms. Boyd, Kindred contended that the ADR agreement Ms. Putnam signed was not unconscionable or void as against public policy. Finally, Kindred asserted that Ms. Boyd should be equitably estopped from refusing to honor the ADR agreement because she relied on the other admission documents concerning Aletha’s care and should not be allowed to single out one document as invalid.
[¶10] In response to Kindred’s motion, Ms. Boyd argued that pre-dispute nursing home arbitration agreements are illegal pursuant to federal regulation; Kindred’s ADR agreement was unconscionable; there is no presumption in favor of arbitration in a dispute concerning the validity of an arbitration agreement; Kindred’s ADR agreement is invalid because it lacks mutuality and is not supported by consideration; and the invalid provisions are not severable because they go to the very essence of the agreement.
[¶11] After, considering the parties’ arguments, the district court denied Kindred’s motion to compel arbitration without providing reasons for doing so. Kindred timely appealed to this Court.
STANDARD OF REVIEW
[¶12] Both the Federal Arbitration Act and the Uniform Arbitration Act adopted by the Wyoming legislature make arbitration agreements “valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.S. § 2; Wyo. Stat. Ann. § 1-36-103 (LexisNexis 2017). Therefore, when deciding whether an arbitration agreement is enforceable, courts apply state law principles governing the formation of contracts. Fox v. Tanner,
[¶13] Whether an agency relationship exists and the scope of the agent’s authority can be questions of fact. Ohio Cas. Ins. Co. v. W.N. McMurry Const. Co,
DISCUSSION
1. Ms. Putnam’s Authority to Sign the ADR Agreement
[¶14] Kindred argued in district court that Ms. Boyd is bound by the ADR agreement because Ms. Putnam had the express authority to sign it on Aletha’s behalf. That authority, Kindred asserted, came from the durable general and medical power of attorney Aletha signed giving Ms. Putnam authority to make “all lawful health care decisions” for her. Kindred argued .that a decision to enter into an ADR agreement in connection with admission to a long-term care facility is a “health care decision.”
[¶15] Ms. Boyd countered that the power of attorney signed by Aletha authorizing Ms. Putnam to make “all lawful health decisions” qualifies as a “power of attorney for health care” governed'by the Wyoming Health Care Decisions Act (WHCDA), citing Wyo. Stat. Ann. § 35-22-403(c)(xiii).
[ (ix) ] “Health care decision” means a decision made by an individual or the individual’s agent,-guardian or surrogate, regarding the individual’s health care, including:
(A) Selection and discharge of health care providers and institutions;
. (B) Approval or disapproval of diagnostic tests, surgical procedures, programs of medication and orders not to resuscitate; and
(C) Directions to provide, withhold or withdraw artificial nutrition and hydration and all other forms of health care..
Id. at (a)(ix). Ms. Boyd contends the decision to submit a dispute to arbitration does not fall within these provisions.
[¶16] We find it unnecessary to address whether the decision to sign an ADR agreement is a health care decision because we conclude the general power of attorney unambiguously gave Ms. Putnam actual authority to sign the agreement, on. Aletha’s behalf. Under Wyoming law, an agent is someone with actual or apparent authority to bind a principal to particular obligations. Ohio Cas. Ins. Co., ¶ 39,
[¶17] The Durable General and Medical Power of Attorney at issue here provided in pertinent part:
■I, Aletha R. Boyd, the principal ... designate Leanna K. Putnam ... my attorney in fact and agent in my name and for my benefit:
1. General Grant of Power. To, exercise or perform any act, power, duty, right or obligation whatsoever that I -now-have or may hereafter .acquire, relating to. any person, matter, transaction or property ... now owned or hereafter acquired by me ... including by way of example but without limitation, full power and authority to hold, ... and without limitation by statute or rule of law; ... contract, ... cany out agreements, ... settle or contest claims; ... and including by way of example, but without limitation, the following specifically enumerated powers. I grant to my agent full power and authority to do everything necessary in exercising any of the powers herein granted as fully as I might or could do if personally present, ... hereby ratifying and confirming all that my agent shall lawfully do or cause to be done by virtue of this power of attorney and the powers herein granted. Without limitation, my agent shall have the power and authority:
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g. General Documents. To make, ... sign, endorse, ... execute ... such ... contracts, agreements, ... and such other instruments in writing of whatever kind and nature as may be necessary or proper in the exercise of the rights and powers herein granted;
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3. Interpretation. This instrument is to be construed and interpreted as a DURABLE POWER OF ATTORNEY. The enumeration of specific powers herein is not intended to, nor does it, limit or restrict the general powers granted to my agent. This instrument, and the powers and authority of my agent hereunder, shall be governed by and construed in accordance with the law of the State of Wyoming.
* * *
6. Third-Party Reliance. Third parties may rely upon the representations of my agent as to all matters relating to any power granted to my agent, ....
(Emphasis in original).
[¶18] Ms. Boyd argues that this language is not sufficiently broad to authorize Ms. Putnam to sign an arbitration agreement on Aletha’s behalf. Quoting Stone v. First Wyoming Bank N.A., Lusk,
[¶19] Even reading the provisions quoted above strictly, the power of attorney did not limit Ms. Putnam’s authority to doing what was necessary with regard to property, business or financial affairs as Ms. Boyd contends. Rather, it gave Ms. Putnam actual authority “to exercise or perform any act, power, ... relating to any person,
[¶20] Other courts have reached the same result when asked to interpret powers of attorney containing similar language. In Jaylene, Inc. v. Moots,
My Agent shall have full power and authority to act on my behalf. This power and authority shall authorize my Agent to manage and conduct all -of my affairs and to exercise all of my legal rights and powers, including all rights and powers that I may acquire in the future.
Id. at 568.
[¶21] The power of attorney at issue in Jaylene also included a list of specific powers granted to the attorney-in-fact, including the power to:
4. Take any and all legal steps necessary ... to settle any claim',- whether made against me or asserted on my behalf against any other person or entity.
5. Enter into binding contracts on my behalf.
Id. The power of attorney stated that the listing of specific powers was not intended to be exhaustive.
[¶22] After the power of attorney was executed, in conjunction with the decedent’s admission into a nursing home, her agent signed an agreement for care that contained an optional arbitration clause. After the decedent’s death, her agent filed a wrongful death action against the nursing home. The nursing home filed a motion to compel pursuant to the arbitration clause. The lower court denied the motion, finding that the arbitration clause was valid, but that the power of attorney did not authorize the decedent’s agent to sign an arbitration agreement on her behalf. The district' court of appeals reversed, holding that the agent had the authority to sign the arbitration agreement. Id. at 567-68.
[¶23] Looking at the general grant of authority, the court concluded that the power of attorney “unequivocally expresses the principal’s intent to make a comprehensive grant of authority to the-attorney-in-fact.” Id. at 569. Looking at the specific powers granted, the court concluded two of the powers mentioned supported the conclusion that the power of attorney authorized the attorney-in-fact to consent to arbitration:
The POA not only authorizes the attorney-in-fact to “enter into binding contracts,” it .also authorizes the attomey-in-fact to settle claims held by the principal. Not unlike agreeing to arbitrate, settling a claim typically involves foregoing the remedy of submitting a claim to a court for final adjudication. We are not prepared to state that a grant of the authority to settle claims includes the authority to consent to arbitration. However, the specific grant of authority to settle claims in the document under review in this ease is consistent with the view that the POA’s broad grant of authority includes the power to consent to arbitration.
Id.
[¶24] Other courts have reached the same result. See Pembroke Health Facilities, L.P. v. Ford,
[¶25] The cases Ms. Boyd cites in support of her assertion that Aletha’s power of attorney did not authorize Ms. Putnam to sign the ADR agreement are inapposite. In Estate of Swanson v. United States,
[¶26] Similarly, in Fort Dearborn Life Ins. Co. v. Holcomb,
[¶27] Ms. Boyd also cites Testa v. Emeritus Corporation,
- [¶28] Unlike the power of attorney at issue here, none of the powers-of attorney in the cases Ms. Boyd cites contained language giving the agent the broad power to “perform any act, power, duty, right or obligation” ... “relating to any person, matter, transaction or property” ... “including by way of example” .,. “full power and authority to ... contract, ,.. [and] carry out agreements.” None of those cases involved powers of attorney that specifically authorized “without limitation,” the agent to sign agreements “of whatever kind and nature as may be necessary or proper” in exercising the rights and powers granted. We therefore hold that Ms. Putnam had- actual-authority to sign the optional ADR agreement on Aletha’s behalf.
2. Unconscionability
[¶29] Ms. Boyd contends the ADR agreement is unconscionable because Kindred included it among the packet of documents Ms. Putnam was required to sign in order to obtain medical care for Aletha, no one explained she was not required to sign it or its effect if she did, and she was emotionally distraught when she signed it and not in a position to make -a meaningful determination about its effect or whether she should sign it.
[¶30] We do not lightly interfere with the freedom of contract. Pittard v. Great Lakes Aviation,
[¶31] As we have said,
In deciding whether a contract is unconscionable, we consider the claim from two perspectives. First, we consider whether the contract provisions unreasonably favor one party over the other, Second, we consider whether the latter party lacked a meaningful choice-in entering into the contract. The first perspective concerns the contract’s substantive unconscionability. The second concerns its procedural uncon-scionability. As noted in Roussalis,4 P.3d at 246 , most courts require evidence ofboth and take a .balancing, approach in applying them. In other words, both the absence of meaningful choice and the presence of contract provisions unreasonably favorable to one party must be found in order to sustain a claim that a contract is unconscionable.. Id.
We have identified the following factors for consideration in addressing claims that a contract is procedurally unconscionable:
[Deprivation of meaningful choice as -to whether to enter into the contract, compulsion to accept terms, opportunity for meaningful negotiation, such gross inequality of bargaining power that negotiations were not possible, characteristics of alleged aggrieved party (underprivileged,. uneducated, illiterate, easily taken advantage of), and surprise by fine print' or concealed terms.
Pittard, ¶ 34,
[¶32] Considering first whether the ADR agreement was procedurally unconscionable, we conclude Ms. Boyd has presented no evidence that Ms. Putnam was deprived of meaningful choice as to whether to sign it. There is nothing in the'record suggesting Ms. Putnam had' any of the characteristics we take into account" in determining there was an absence of meaningful choice—Ms. Boyd presented no evidence that Ms. Putnam was underprivileged, uneducated, illiterate, or easily taken advantage of. In fact, Ms. Boyd presented no evidence about Ms. Putnam at all.
[¶33] The evidence does show that Ms. Putnam could not have been surprised by fine print or concealed terms. The agreement expressly stated at the top in bold print that it was optional, which should have alerted Ms. Putnam that she was not compelled to sign it. If she did not understand that, she could have asked. Likewise, she could have asked if she did not understand the effect of signing the document. Ms. Boyd has presented no evidence suggesting Ms. Putman was somehow prevented from asking about the ADR agreement.
[¶34] Ms. Boyd does assert that Ms. Putnam was emotionally distraught at the time she signed the agreement, and that her “grief and confusion placed her at a disadvantage.” However, the record contains no evidence to support these.assertions. Again, it is devoid of any evidence about Ms. Putnam or her state of mind. Absent evidence demonstrating that the ADR agreement was both procedurally and substantively unconscionable, Ms. Boyd’s claim that the agreement was unconscionable fails.
3. Enforceability of the ADR Agreement in Light of the Provision Incorporating the National Arbitration Forum Mediation Rules and Code of Procedure
[¶35] The ADR agreement included a provision stating:that mediation and arbitration between the parties “shall be ... administered by an independent, impartial entity that is regularly engaged in .providing mediation and arbitration services.” The agreement further provided that the administrator “may be” the National Arbitration Forum (NAF) located in Minneapolis, Minnesota; however, if the parties chose not to use NAF or if NAF was unwilling or unable to serve, the agreement authorized the parties to select another administrator satisfying the qualifications set forth in the agreement. The agreement stated:
V. Process. Regardless of the entity chosen to be Administrator, unless the Parties agree otherwise in writing, the ADR process shall be conducted in accordance with ■ the NAF Mediation Rules and the NAF Code of Procedure ... then in effect.
(Emphasis added),
[¶36] In the district court, 'Ms. Boyd argued the words “then in effect” indicated that the arbitration rules the parties were required to follow were subject to change, and therefore" the parties did not know what rules they were agreeing to, and there was no meeting of the minds as to an essential term of their agreement. She also asserted that Kindred’s promise to be bound by a set of rules that were subject to change was not sufficient consideration for a binding contract. Finally, she argued the invalid rule provision, went to the very essence of the agreement and was therefore not severable, rendering the entire agreement invalid.
[¶38] Kindred urges the Court not to address Ms. Boyd’s new arguments because she did not present them in district court. Although both arguments challenge the enforceability of the ADR agreement, they do so on entirely different grounds. Ms.- Boyd’s new arguments were not explored in district court and there is no evidentiary basis in the record for her assertions about the NAF or its rules. We therefore decline to address the new arguments and limit our discussion to those Ms. Boyd presented in district court.
[¶39] Mutual assent between contracting parties is necessary for the formation of a contract. Frost Const. Co. v. Lobo, Inc.,
[¶40] Kindred and Ms. Putnam agreed to submit disputes arising from Aetha’s care to mediation, and if that was unsuccessful, to arbitration. They further agreed that any mediation and/or arbitration would be administered by an independent, impartial entity regularly engaged in providing mediation and arbitration services. Athough the agreement provided that NAF “may be” the administrator, it also expressly stated that the parties were free to-select another qualified administrator. While the agreement stated that regardless of the administrator selected, the mediation and arbitration proceedings “shall” be conducted in accordance with NAF rules and code of procedure, it also expressly gave the- parties the right to agree in writing to a different process. Because the parties could opt out of proceedings conducted in accordance with NAF rules and agree to a*different process, the NAF rules provision was not a condition- necessary to performance of the contract and, we conclude, not an essential term. From the express language in the ADR agreement, we can ascertain the reasonable intent of the parties to select a qualified administrator and allow for a non-NAF process. The agreement is not unenforceable for lack of mutual assent.
[¶41] Ms. Boyd also argued that Kindred’s promise to be bound by a set of rules that was subject to change was not adequate consideration to support the ADR agreement. She cited Dumais v. American Golf Corp.,
[¶42] For a contract to be valid, “there must be an offer and acceptance along with bargained for and exchanged valuable consideration. Valuable consideration in this context may consist of an exchange of mutual promises, which promises impose a legal liability
[¶43] Kindred and Ms. Putnam mutually agreed that any disputes arising from Ale-tha’s care at the facility would be resolved by an ADR process. They further agreed that by entering into the ADR agreement, they were giving up their constitutional right to have disputes decided by a court of law. Additionally, they agreed
that the speed, efficiency, and cost-effectiveness of the ADR process, together with them mutual undertaking to engage in that process, constitute good and sufficient consideration for the acceptance and enforcement of this Agreement.
Thus, they exchanged mutual promises to forbear their right to resolve disputes in court and create a new legal relationship requiring them to utilize the ADR process. There was sufficient consideration to support the ADR agreement.
[¶44] Other courts have reached the same result when considering whether agreements to arbitrate are supported by sufficient consideration. In Hayes v. Oakridge Home,
CONCLUSION
[¶45] We hold that Ms. Putnam had the authority to sign the optional ADR agreement on Aletha’s behalf by virtue of the general durable power of attorney. We further hold that Ms. Boyd failed to show the ADR was unconscionable or that it lacked mutuality of assent or sufficient consideration. The district court’s order denying Kim dred’s motion to compel arbitration is reversed, and we remand with, instructions to order- arbitration as required by the agreement.
Notes
. Kindred asks the Court not to address this issue because Ms. Boyd did not present it in the district court. Kindred devoted nine pages in its motion to compel in district court arguing that Ms. Putnam had authority to sign the ADR agreement. Although Ms. Boyd did not respond in district court to Kindred’s argument, she has fully briefed the issue for this Court. Because Ms. Putnam's authority was discussed below, the parties have fully briefed the issue, and the eviden-tiary record is sufficient to allow us to consider it,-we will address it.
. In response to an argument Ms. Boyd presented in district court, Kindred also addressed the issue of whether the ADR agreement is illegal or void pursuant to a'regulation promulgated by the Federal Centers for Medicare and Medicaid Services (FCMMS) banning mandatory arbitration agreements in long-term care facilities. We decline to address the issue because in her brief to this Court, Ms. Boyd conceded the FCMMS withdrew the regulation in 2017. Although she asserts the reasons for the withdrawal were economic and not because the FCMMS changed its view that mandatory arbitration agreements in nursing homes are unfair, the fact remains that the regulation has been withdrawn and the issue of whether the ADR agreement is illegal pursuant to the regulation is moot.
3. Despite the business being identified by another name in the ADR agreement, Kindred’s notice of appeal identifies it as Kindred Nursing and Rehabilitation—Wind River. We refer to the entities as "Kindred.”
. The Medical Review Panel Act of 2005 requires claims against healthcare providers, except those subject to a valid arbitration agreement, to be filed with, and reviewed by a medical review panel before a complaint is filed in a court of law.
. That statute provides that "[t]he [medical review] panel shall review-all malpractice claims against health care providers filed with the panel except those claims subject to. a valid arbitration agreement allowed by law ,... ” Wyo. Stat. Ann. § 9-2-1518(a) (LexisNexis 2017).
. Wyo. Stat. Ann. § 1-36-119(a)(i) and (b) (Lexis-Nexis 2017) authorize a direct appeal from an order denying a motion to' compel arbitration.
. Ms. Boyd's brief cites to § 35-22-403(c)(xiii). However, subsection- (c) of this statute deals with who shall not be used as a witness for a power of attomey, and there is no subsection (xiii). We assume she meant to cite to- § 35-22-402(a)(xiii), defining "Power of attorney for health care,”