RENDERED: JUNE 4, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0760-MR

PRESBYTERIAN HOMES AND 

SERVICES OF KENTUCKY, INC.; 

BRIDGETTE TODD, IN HER 

CAPACITY AS ADMINISTRATOR 

OF WESTMINISTER TERRACE; AND 

PRESBYTERIAN HOMES AND 

SERVICES FOUNDATION, INC. APPELLANTS 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE SUSAN SCHULTZ GIBSON, JUDGE

ACTION NO. 19-CI-003823 

GLENN DEAN, ADMINISTRATRIX 

OF THE ESTATE OF MATTIE E. 

HAMPTON, DECEASED APPELLEE 

OPINION

REVERSING AND 

REMANDING

**   **  **

BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.

COMBS, JUDGE: Presbyterian Homes and Services of Kentucky, Inc.; 

Presbyterian Homes and Services Foundation, Inc.; and Bridgette Todd, in her 
-2-

capacity as Administrator of Westminster Terrace (referred to collectively as 

“Presbyterian Homes”), appeal the denial of their motion to stay proceedings and 

compel arbitration. After our review, we reverse and remand. 

On March 27, 2018, Mattie Hampton, now deceased, was admitted to 

Westminster Terrace, a long-term care facility operated by Presbyterian Homes. 

Except for periods of hospitalization, Hampton remained a resident of the care 

home until October 12, 2018. 

Upon Hampton’s admission to the care home, Hampton’s daughter, 

Glenn Dean, executed on her mother’s behalf an agreement to arbitrate “[a]ny and 

all claims or controversies arising out of or in any way relating to this Agreement 

or Resident’s stay at Facility.” Dean signed the agreement, indicating that she was 

the “Legal Representative/Responsible Party.” She gave the care home a copy of 

the power-of-attorney document (the POA) that vested Dean with authority over a 

wide range of Hampton’s affairs, expressly reciting the authority to make 

“[d]ecisions [r]elating to . . . [Hampton’s] institutionalization in a nursing home or 

other facility” and the power to “act on [Hampton’s] behalf for the following 

purpose[s] . . . [c]laims and [l]itigation.” Execution of the agreement to arbitrate 

was not required for Hampton’s admission to the care home. The agreement 

provided that it could be rescinded by written notice to the care home within thirty 

(30) days of its execution. 
-3-

On June 21, 2019, as administratrix of Hampton’s estate, Dean filed a 

civil action in Jefferson Circuit Court against Presbyterian Homes. Dean alleged 

that Presbyterian Homes failed to provide to Hampton the minimum care necessary 

for her wellbeing and that it knew that it could not do so. She alleged that the 

home’s wrongful conduct caused Hampton to suffer an accelerated deterioration of 

health; an unnecessary loss of dignity; extreme pain and suffering; mental anguish; 

disability; and death. Presbyterian Homes answered the complaint and denied any 

wrongdoing. It also asserted that the action (except for the wrongful death claim) 

was prohibited by the terms of the parties’ arbitration agreement. 

In January 2020, Presbyterian Homes filed a motion to dismiss the 

action or, in the alternative, to compel the alternative dispute resolution process, 

staying the wrongful death claim pending resolution of the arbitrable claims. It 

relied upon the arbitration agreement signed by Dean on Hampton’s behalf; 

Kentucky’s version of the Uniform Arbitration Act, codified at Kentucky Revised 

Statutes (KRS) 417.050 et seq.; and the Federal Arbitration Act (FAA), codified at 

9 United States Code § 1 et seq. The care home argued that the POA document 

gave Dean broad authority over Hampton’s affairs -- specifically encompassing the 

power to execute the arbitration agreement on her behalf upon her admission to its 

facility.
-4-

In her response, Dean contended that the arbitration agreement was 

unenforceable for three reasons. First, she lacked necessary authority under the 

provisions of the POA to enter into a binding, pre-dispute arbitration agreement on 

Hampton’s behalf. Next, the arbitration agreement was not properly authenticated. 

And third, the agreement was both procedurally and substantively unconscionable. 

The circuit court treated the motion as one for summary judgment and 

denied it in an order entered May 8, 2020. Relying on the decision of the Supreme 

Court of the United States in Kindred Nursing Centers Ltd. Partnership v. Clark, 

___ U.S. ___, 137 S. Ct. 1421, 197 L. Ed. 2d 806 (2017), and the decision of the 

Supreme Court of Kentucky upon remand in Kindred Nursing Centers Limited 

Partnership v. Wellner, 533 S.W.3d 189 (Ky. 2017), the circuit court concluded 

that it could not infer from the authority expressly granted to Dean that she had 

power sufficient to bind Hampton to the arbitration agreement. In light of that

conclusion, the court did not address the other arguments presented by Dean to 

show that the agreement was unenforceable. This appeal followed.

An order denying a motion to compel arbitration is immediately 

appealable. KRS 417.220(1); Conseco Finance Servicing Corp. v. Wilder, 47 

S.W.3d 335 (Ky. App. 2001). We review “the trial court’s application of [the law] 

de novo, although the trial court’s factual findings, if any, will be disturbed only if 

clearly erroneous.” Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581, 590 (Ky. 
-5-

2012).

Both Kentucky precedent and national policy favor agreements to 

arbitrate. Louisville Peterbilt, Inc. v. Cox, 132 S.W.3d 850 (Ky. 2004). Similarly, 

“[a]rbitration has always been favored by the courts.” Poggel v. Louisville Ry. Co., 

225 Ky. 784, 10 S.W.2d 305, 310 (1928). Nevertheless, a party seeking to compel 

arbitration has the initial burden of establishing the existence of a valid agreement 

to arbitrate. Ping, supra. Whether a valid agreement exists is determined by 

ordinary state-law principles of contract formation. KRS 417.050. However, the 

statutory framework of the FAA also impacts the court’s determination whether a 

valid arbitration agreement was formed. Kindred Nursing Centers Ltd.

Partnership v. Clark, __ U.S. __, S. Ct. 1421, 1428, 197 L. Ed. 2d 806 (2017) (“By 

its terms, then, the [FAA] cares not only about the ‘enforce[ment]’ of arbitration 

agreements, but also about their initial ‘valid[ity]’—that is, about what it takes to 

enter into them.”) 

On appeal, Presbyterian Homes argues that the trial court erred by 

refusing to compel arbitration and to stay the wrongful death claim. It contends 

that it met its burden of establishing the existence of a valid agreement to arbitrate 

because the POA document expressly delegated to Dean the authority to execute 

the agreement on Hampton’s behalf. We agree.
-6-

In Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306 (Ky. 2015), 

rev’d in part, vacated in part by Kindred Nursing Centers Ltd. Partnership v. 

Clark, __ U.S. __, 137 S. Ct. 1421, 197 L. Ed. 2d 806 (2017), the Supreme Court 

of Kentucky examined the power-of-attorney documents in each of three 

consolidated arbitration cases -- Extendicare Homes, Inc. v. Whisman; Kindred 

Nursing Centers Ltd. Partnership v. Clark; and Kindred Nursing Centers Ltd. 

Partnership v. Wellner. The Court concluded that none of the attorneys-in-fact 

was authorized to execute an arbitration agreement tendered by the care homes 

upon the residents’ admission. It stated that:

without a clear and convincing manifestation of the 

principal’s intention to do so, we will not infer the 

delegation to an agent of the authority to waive a 

fundamental personal right so constitutionally revered as 

the “ancient mode of trial by jury.” 

Id. at 313. The Court held that an attorney-in-fact has authority to execute an 

arbitration agreement only where the power-of-attorney document explicitly grants 

that specific authority -- the “clear-statement rule.” 

Upon its review, the U.S. Supreme Court noted that the FAA 

preempts any state rule that discriminates on its face against arbitration. Kindred 

Nursing Centers, supra. The Court rejected our clear statement rule because it 

singled out arbitration agreements for disfavored treatment in violation of the 

FAA. It concluded that by its decision in Whisman, the Supreme Court of 
-7-

Kentucky had “specially impeded the ability of attorneys-in-fact to enter into 

arbitration agreements” and “flouted the FAA’s command to place those 

agreements on an equal footing with all other contracts.” __ U.S. __, 137 S. Ct. 

1421, 1429, 197 L. Ed. 2d 806 (2017). 

However, with respect to the decision of our Supreme Court in the 

associated case of Kindred Nursing Centers Ltd. Partnership v. Wellner, the U.S.

Supreme Court was uncertain whether the clear-statement rule had influenced the 

court’s construction of the POA document at issue. Consequently, the U.S. 

Supreme Court remanded that case for a determination of whether there were

alternative grounds for the court’s rejection of the arbitration agreement in light of 

the provisions of the Wellner POA that were “wholly independent” of the clearstatement rule. Id. at 1424.

Upon remand, the Supreme Court of Kentucky again considered the 

breadth and scope of the Wellner POA. In Kindred Nursing Centers Limited

Partnership v. Wellner, 533 S.W.3d at 191, the Court concluded that its prior 

decision had not been influenced by the clear-statement rule. The Court reasoned

that the power of a principal’s attorney-in-fact to enter into a pre-dispute 

arbitration agreement on his behalf could be inferred from a comprehensive 

delegation of authority. However, the specific authority described in the Wellner 

POA was deemed insufficiently broad to cover execution of a pre-dispute 
-8-

arbitration agreement. The POA provisions cited by the Court vested Wellner’s 

attorney-in-fact with authority “to demand, sue for, collect, recover and receive all 

debts, monies, interest and demands whatsoever now due or that may hereafter be 

or become due to me (including the right to institute legal proceedings therefor)”;

and the power “to make, execute and deliver deeds, releases, conveyances and 

contracts of every nature in relation to both real and personal property, including 

stocks, bonds, and insurance.” Id. at 193. In its decision, our Supreme Court 

expressed “a willingness to infer in proper cases the power to commit to arbitration

even where that express authority [is] lacking.” Id. The inference can be made 

wherever it is “reasonably consistent with the principal’s expressed grant of 

authority.” Id. at 194.

In the case before us, The Hampton POA conferred broad authority 

upon Dean to make “[d]ecisions [r]elating to . . . [Hampton’s] Institutionalization 

in a nursing home” and to act on her behalf with respect to “[c]laims and 

[l]itigation.” Dean’s decision to execute the arbitration agreement was directly 

related to Hampton’s placement at the care home. Execution of the agreement was 

within her all-encompassing authority to make decisions related to Hampton’s 

admission to the of facility. The fact that execution of the agreement was entirely 

optional for Hampton’s admission to the care home is entirely irrelevant because 

Dean was specifically empowered to make the decision on Hampton’s behalf under 
-9-

the express terms of the POA document. Moreover, as the Kentucky Supreme 

Court pointed out in Wellner, the authority of an attorney-in-fact to bind her 

principal will be inferred where it is “reasonably consistent with the principal’s 

expressed grant of authority[.]” Wellner, 533 S.W.3d at 194. The express grant of 

authority conferred upon Dean by Hampton’s POA implicitly contemplates and 

expressly encompasses the power to bind Hampton to the arbitration agreement. 

The circuit court erred as a matter of law by concluding that the 

Hampton POA document “did not include any power that could be interpreted to 

permit [Dean] to enter into a pre-dispute arbitration agreement on [Hampton’s] 

behalf.” Consequently, the judgment of the Jefferson Circuit Court must be

reversed. 

Therefore, we REVERSE the judgment of the Jefferson Circuit Court 

and REMAND for entry of an order consistent with this opinion. 

KRAMER, JUDGE, CONCURS. 

THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANTS:

Edward M. O’Brien

Louisville, Kentucky

BRIEF FOR APPELLEE:

Megan L. Adkins

Lexington, Kentucky