COLORADO COURT OF APPEALS RULES ON SCOPE OF HEALTH CARE PROXY

Sections 15-18.5-103 and 15-18.5-104, C.R.S. 2009, provide for appointment of a person to act as a health care proxy to make medical treatment and health care benefit decisions on behalf of an incapacitated person. The Colorado Court of Appeals recently ruled that a decedent's estate was not bound by an arbitration provision contained in nursing home admission documents signed by the decendent's health care proxy. Estate of Lujan v. Life Care Centers of America, d/b/a Evergreen Nursing Home, Case No. 08CA2367 (Nov. 25, 2009).

The Court ruled that the person appointed as the decedent's health care proxy did not have the authority to enter into an arbitration agreement because a decision to arbitrate is not a "medical treatment decision," and therefore the the estate was not bound by the arbitration agreement contained in the admission documents. Id. Note that the issue of whether an agreement to arbitrate is a "health care benefit decision" was resolved in the negative at the trial court level and was not raised on appeal.

The Court agreed that the decision to admit an incapacited person to a nursing home facility may fall with the definition of "medical treatment decision," but concluded that the General Assembly intended that this term be construed narrowly. In support of this conclusion, the Court pointed to Section 13-64-403(7), C.R.S. 2009, which provides that a health care provider cannot condition provision of medical care services on the patient's signing an arbitration agreement, and to Section 13-64-403(1), C.R.S. 2009, which requires arbitration agreements to be entered into voluntarily by the patient.

The Court further concluded that because of the incapacitated person's inherent lack of choice in appointment of the proxy "the health care proxy's authority should be viewed as a last resort and should be strictly limited to those decisions that are necessary to preserve a patient's health and well-being and that the patient would likely make were he or she able to do so." Id.

Posted By: Brent W. Houston, Esq.