IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 9, 2022 Session

JAMES A. WELCH ET AL. v. OAKTREE HEALTH AND 

REHABILITATION CENTER LLC D/B/A CHRISTIAN CARE CENTERS 

OF MEMPHIS ET AL.

Appeal by Permission from the Court of Appeals

Circuit Court for Shelby County

No. CT-000544-18 Jerry Stokes, Judge

___________________________________

No. W2020-00917-SC-R11-CV

___________________________________

Tennessee’s Durable Power of Attorney for Health Care Act, Tennessee Code Annotated

sections 34-6-201 to -218, includes a provision for limited statutory immunity from civil 

liability, under certain conditions, for health care providers who rely in good faith on health 

care decisions made by an apparent agent on a principal’s behalf. Id. § -208. Tennessee’s 

Health Care Decisions Act, Tennessee Code Annotated sections 68-11-1801 to -1815, 

includes a similar provision for limited statutory immunity from civil liability, under 

certain conditions, for health care providers who comply in good faith with health care 

decisions made by an apparent agent on a principal’s behalf. Id. § -1810. The health care 

decision in this case is the execution of an arbitration agreement with admission to a 

nursing home. The agreement was signed by an agent under a durable power of attorney 

for health care executed several years earlier. After the resident’s death, his estate filed a 

wrongful death lawsuit against the nursing home on negligence theories. On appeal from 

the trial court’s denial of the defendant nursing home’s motion to compel arbitration, we 

hold that the nursing home does not meet the requirements for limited statutory immunity 

from civil liability under either the Durable Power of Attorney for Health Care Act or the 

Health Care Decisions Act. Consequently, the trial court did not err in considering 

evidence on whether the principal had the requisite mental capacity to execute the durable 

power of attorney for health care. We overrule the holding on the immunity provision in 

the Durable Power of Attorney for Health Care Act, Tennessee Code Annotated section

34-6-208, in Owens v. National Health Corporation, 263 S.W.3d 876, 889 n.4 (Tenn. 

2007), to the extent it is inconsistent with this opinion. We affirm the trial court, reverse 

the Court of Appeals, and remand to the Court of Appeals. 

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals 

Reversed; Remanded to the Court of Appeals

08/31/2023
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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, and 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. 

 

1 We use first names for David Welch and James Welch to avoid confusion because they share the 

same last name. No disrespect is intended. 
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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. 

As part of the admission process, James executed several documents on David’s 

behalf. They included an arbitration agreement (“Arbitration Agreement”). It is 

undisputed that Christian Care did not require execution of the Arbitration Agreement; 

David would still have been admitted to the facility had James declined to sign it. The 

Arbitration Agreement lists Christian Care as the “Facility,” David Welch as the 

“Resident,” and James Welch as the “Representative.” James signed it and filled out his 

“Relationship to Resident” as “Brother [and] POA.” The Arbitration Agreement states it 

“waives Resident’s right to a trial in court and a trial by a jury for any future legal claims 

resident may have against facility.” 

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 Care 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 

 

2 The complaint lists James as the Plaintiff “et al.” presumably because he sued in his capacity as 

administrator of David’s estate and on behalf of beneficiaries. In this opinion, however, we refer to Plaintiff 

in the singular. 

3 Under Tennessee statutes, if a party files a motion to compel arbitration and it is opposed, the trial 

court proceeds immediately to determine whether the motion should be granted: 

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 
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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

Tennessee Code Annotated section 34-6-208, the immunity provision in Tennessee’s

Durable Power of Attorney for Health Care Act, as well as a footnote in this Court’s 

opinion in Owens v. National Health Corporation, 263 S.W.3d 876 (Tenn. 2007).

5

In the 

alternative, Defendants argued that the evidence on David’s lack of mental capacity was 

not clear and convincing. 

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 

 

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.

Tenn. Code Ann. § 29-5-303(a) (2012).

4 Plaintiff submitted an affidavit and deposition testimony from A. Jefferson Lesesne, M.D., a 

licensed physician in the State of Georgia with training and knowledge in the provision of long-term care, 

as well as treatment of patients with Down syndrome and other cognitive impairments. Dr. Lesesne 

reviewed the medical records, depositions, and other documentation related to David in preparation for his 

testimony. In the alternative, Plaintiff argued that the Arbitration Agreement was unconscionable. The 

trial court did not address unconscionability, and it is not at issue in this appeal. 

5 As explained more fully below, the plaintiff in Owens questioned whether the principal was 

competent to execute a power of attorney granting authority to an agent. In response to a petition to rehear, 

the Owens Court stated that, on remand, “[d]iscovery should not be permitted . . . concerning the validity 

of the power of attorney or the circumstances surrounding its execution.” 263 S.W.3d at 889 n.4 (citing 

Tenn. Code Ann. § 34-6-208 (2021)).

6 Under Tennessee statutes, Defendants had a right to immediately appeal the trial court’s denial of 

the motion to compel arbitration: “An appeal may be taken from: (1) An order denying an application to 

compel arbitration made under § 29-5-303 . . . .” Tenn. Code Ann. § 29-5-319(a).
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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 reversed 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, Tennessee Code Annotated sections

34-6-201 to -218 (2021), as contended by Defendants. Id. at *7–8. Instead, the court 

concluded that the POA was governed by Tennessee Code Annotated section 68-11-1810, 

the immunity provision in the Health Care Decisions Act. Id. (citing Tenn. Code Ann. §§ 

68-11-1801 to -1815 (2013)).

On the merits, based on section 68-11-1810, the appellate court held that the trial 

court erred by considering evidence on whether David had the mental capacity to sign the 

POA. Id. at *12. It found that the footnote in Owens governed, even though Owens applied 

the immunity provision in the Durable Power of Attorney for Health Care Act, not the 

Health Care Decisions Act. Id. (citing Owens, 233 S.W.3d at 889 n.4, 891). It said: “[W]e 

believe that the Tennessee Supreme Court’s application of Tennessee Code Annotated 

section 34-6-208 in Owens requires the same result with respect to section 68-11-1810 in 

this case, involving a power of attorney for health care and the newer [Health Care 

Decisions Act].”7 Id. at *10. It found that this holding pretermitted the issue of whether 

there was clear and convincing evidence that David lacked the required mental capacity to 

execute the POA, and it remanded the case to the trial court to consider Plaintiff’s argument 

that the Arbitration Agreement is unconscionable. Id. at *12. 

Plaintiff then sought permission to appeal to this Court, arguing that the 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. 

 

7 The Court of Appeals added, “It is not for this Court to say whether the statute was properly 

applied in Owens” because it was bound to follow decisions by the Tennessee Supreme Court. Welch, 2022 

WL 589926, at *12. 
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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 

Tennessee Code Annotated section 34-6-208, the immunity provision in the Durable Power 

of Attorney for Health Care Act, as well as the footnote in Owens citing that same statute. 

Neither party asked the Court of Appeals to consider the counterpart immunity provision 

in the Health Care Decisions Act.8

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 Tenn. Code Ann. §§ 34-6-208, 68-11-1810). 

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 Appeals’ 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, however, Bristol emphasized the many reasons why such discretion should 

be exercised “sparingly.” Id. at 927 (citations omitted).

 

8 The only mention of any provision in the Health Care Decisions Act in the Defendant’s brief to 

the intermediate appellate court was in support of its alternate argument that the evidence did not clearly 

and convincingly establish that David lacked the capacity to execute the POA. See Br. of DefendantsAppellees at 19, Welch v. Oaktree Health & Rehab. Ctr. LLC, No. W2020-00917-COA-R3-CV, 2022 WL 

589926 (Tenn. Ct. App. Feb. 28, 2022) (No. CT-000544-18). 
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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.

Id.

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 Tennessee Code Annotated section 34-6-

208(a), the immunity provision in the Durable Power of Attorney for Health Care Act cited 

in Owens. Instead of considering that statute, the Court of Appeals chose to interpret a 

different statute, Tennessee Code Annotated section 68-11-1810(a)(1), the immunity 

provision in the Health Care Decisions Act. By happenstance, as discussed below, we have 

an unusual situation where two similar statutes are potentially applicable, so the appellate 

court was still looking at the overall question of whether the trial court was precluded by 

statute from considering evidence on David’s mental capacity. But that question hinges on 

statutory interpretation, and the Court of Appeals decided the case by interpreting an 

entirely different statute. Welch, 2022 WL 589926, at *7. 

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 of 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 
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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 whether it should construe the immunity provision in the Health 

Care Decisions Act instead of the Durable Power of Attorney for Health Care Act. But 

doing so clearly would have been best practice. As in Bristol, the parties in this case had 

“no inkling” that another statute “was in play and therefore no reason to . . . research it[] 

or address it in [their] briefs.” 654 S.W.3d at 927. They were put in the position of having 

to address the question either “for the first time in a petition for rehearing after the court 

has already ruled” or in a further appeal. Id. at 928. The record here indicates no reason 

why the appellate court could not have at least ordered supplemental briefing on the 

question of which statute applies. 

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 

competence, 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.
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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, the 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 
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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 power 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.W.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 opposed on the basis that the arbitration agreement is unenforceable because 

the agent who executed it was without authority to do so.

III. Background on Two Statutes

 

9 Generally, “the issue of whether a valid agreement to arbitrate exists should be decided by the 

courts before submitting the remainder of the claim to arbitration.” Berent v. CMH Homes, Inc., 466 S.W.3d 

740, 746 n.1 (Tenn. 2015) (citing Taylor v. Butler, 142 S.W.3d 277, 283–84 (Tenn. 2004)).

10 The common law of agency “attributes the legal consequences of one person's action to another 

person.” Barbee v. Kindred Healthcare Operating, Inc., No. W2007-00517-COA-R3-CV, 2008 WL 

4615858, at *6 (Tenn. Ct. App. Oct. 20, 2008) (quoting Restatement (Third) of Agency ch. 2, Introductory 

Note (2006)). “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests 

assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the 

principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) Of 

Agency, supra, § 1.01. “Relationships of agency are among the larger family of relationships in which one 

person acts to further the interests of another and is subject to fiduciary obligations.” Id. § 1.01 cmt. g. 
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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 Tenn. 

Code Ann. §§ 34-6-201 to -218 (“Durable Power of Attorney for Health Care Act”). This 

allowed for the written appointment of an agent to make health care decisions for a

principal if the principal became unable to do so.11 Key & Miller, supra, at 27.

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 Tenn. Code Ann. §§ 68-11-

1801 to -1815 (“Health Care Decisions Act”). 

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 

 

11 “Durable power of attorney” is defined by statute as:

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. 

Tenn. Code Ann. § 34-6-102. The Durable Power of Attorney for Health Care Act defines a 

“durable power of attorney for health care” as “a durable power of attorney to the extent that it authorizes 

an attorney in fact to make health care decisions for the principal.” Tenn. Code Ann. § 34-6-201(1).

 

12 The Health Care Decisions Act defines “advance directive” as “an individual instruction or a 

written statement relating to the subsequent provision of health care for the individual, including, but not 

limited to . . . a durable power of attorney for health care.” Tenn. Code Ann. § 68-11-1802(a)(1) (2013).

13 The Health Care Decisions Act defines “agent” as “an individual designated in an advance 

directive for health care to make a health care decision for the individual granting the power.” Tenn. Code 

Ann. § 68-11-1802(a)(2).
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care decisions should the adult lose the capacity to do so. See Tenn. Code Ann. § 68-11-

1803(b). A durable power of attorney for health care is considered a type of advance 

directive. Id. § -1802(a)(1). The Health Care Decisions Act includes a simplified 

definition of “power of attorney for health care” as “the designation of an agent to make 

health care decisions for the individual granting the power.” Id. § -1802(a)(14).14 

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 

adult may—orally or in writing—designate someone “to act as surrogate by personally 

informing the supervising health care provider.” Id. § -1806(a). For a patient who lacks 

capacity and has no agent or surrogate, the Act gives directions for health care providers 

to identify a surrogate to make health care decisions on the patient’s behalf. Id. § -1806(c). 

It also addresses situations where no surrogate is available. See id. § -1806(c)(5). Overall, 

the Act provides “comprehensive, common sense method[s] for making health care 

decisions” for patients who cannot act on their own behalf. Barbee, 2008 WL 4615858, at 

*11.

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 ‘evidence an intent’ to be governed 

 

14 “[T]here are no statutorily prescribed forms, no ‘magic language’ requirements for the body of 

the instrument, and no requirements for legalistic warnings.” Key & Miller, supra, at 28. 

15 Initial drafts of the Health Care Decisions Act “provided for the repeal of the old . . . durable 

health care power of attorney laws with grand-fathering provisions . . .; however, following an expression 

of a concern by some members of the bar that such repeal would create confusion, the statute was redrafted 

to leave the old laws in place.” Key & Miller, supra, at 28 n.22.
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by the old law.” Key & Miller, supra, at 28 n.22. Thus, both Acts remain in effect under 

redundant savings provisions. See Tenn. Code Ann. §§ 34-6-217;16 68-11-1803(j).17

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 

 

16 The Durable Power of Attorney for Health Care Act provides: 

(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.

Tenn. Code Ann. § 34-6-217.

17 The Health Care Decisions Act provides:

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.

Tenn. Code Ann. § 68-11-1803(j).
- 14 -

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.

Tenn. Code Ann. § 34-6-208(a). 

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 section 34-6-208(a), Defendants argue, if a 

health care provider relies in good faith on a facially valid durable power of attorney for 

health care used for an arbitration agreement, the trial court is statutorily precluded from 

looking beyond the face of the POA to consider evidence of the principal’s mental capacity. 

Here, Defendants stress, James presented Christian Care with a “fully executed 2012 

Health Care Power of Attorney, which bore the signatures of two witnesses who swore 

under penalty of perjury that they knew David, that he signed the document in their 

presence, and that he ‘appear[ed] to be of sound mind and under no duress, fraud or undue 

influence.’” Under these circumstances, they emphasize, the health care provider had 

ample reason to “believe[] in good faith” that James was authorized to sign the Arbitration 

Agreement. See Tenn. Code Ann. § 34-6-208(a)(1). 

This issue requires us to construe section 34-6-208(a). In doing so, we are mindful 

that “[t]he text of the statute is of primary importance, and the words must be given their 

natural and ordinary meaning in the context in which they appear and in light of the 

statute’s general purpose.” Coffee Cnty. Bd. of Educ. v. City of Tullahoma, 574 S.W.3d 

832, 839 (Tenn. 2019) (quoting Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 

2012)). We consider “the language of the statute, its subject matter, the object and reach 

of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought 

to be accomplished in its enactment.” Spires v. Simpson, 539 S.W.3d 134, 143 (Tenn. 

2017) (quoting State v. Collins, 166 S.W.3d 721, 726 (Tenn. 2005)). Our construction 
- 15 -

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, section 34-6-208 offers limited protection 

to health care providers who rely on health care decisions by a principal’s attorney-in-fact. 

Such health care providers are “not subject to . . . civil liability . . . 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 . . . .” Tenn. Code Ann. § 34-6-208(a). Thus, if the statutory requirements 

are met, such health care providers are immune from civil liability except to the extent they 

would be liable had the principal made the health care decision. A grant of immunity from 

civil liability is clearly in derogation of the common law. As such, we must construe the 

statute strictly and confine it to its “express terms.” Lawson v. Hawkins Cnty., 661 S.W.3d 

54, 59 (Tenn. 2023) (“Statutes ‘in derogation of the common law,’ moreover, must be 

‘strictly construed and confined to their express terms.’”) (quoting Moreno v. City of 

Clarksville, 479 S.W.3d 795, 809 (Tenn. 2015))).

The grant of immunity from civil liability in section 34-6-208(a) has conditions.

Health care providers are not subject to civil liability “if the health care provider relies on 

a health care decision and both of the” good faith requirements quoted above “are 

satisfied.” Tenn. Code Ann. § 34-6-208(a) (emphasis added). This language indicates all 

of the requirements for the grant of immunity must be met in order for health care providers 

to get statutory immunity. 

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 id. § -208(a)(1)–(2). They note that, under Owens, 

a durable power of attorney for health care provides authority for agents to execute 

arbitration agreements as part of admission to a health care facility. 263 S.W.3d at 885.

Ergo, they contend, the decision to enter into an arbitration agreement in connection with 

admission to Christian Care is considered a “health care decision” under section 34-6-

208(a). 

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. Section 34-6-208(a) states that health care providers are “not subject to . . . 

civil liability . . . if the health care provider relies on a health care decision,” here, the 

decision to sign the Arbitration Agreement. Tenn. Code Ann. § 34-6-208(a) (emphasis 

added); see Reliance, Black’s Law Dictionary (11th ed. 2019) (“Dependence or trust by a 

person, esp. when combined with action based on that dependence or trust. — rely, vb.”).
- 16 -

Here, it is undisputed that David’s admission to Christian Care was not conditioned on 

execution of the Arbitration 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 section 34-6-208: A “decision is to withhold or withdraw health care 

necessary to keep the principal alive.” Tenn. Code Ann. § 34-6-208(a)(2). Had James, 

acting as David’s agent, decided to withhold life-saving health care for David, one can 

readily see how Christian Care could have withheld care for David in good faith reliance 

on James’s decision. In this case, however, Defendants did not depend or rely in any way

on the Arbitration Agreement; they did not act or refrain from acting based on it. 

In addition, the text of section 34-6-208 contemplates that the civil liability from 

which the provider gets immunity is related to or arises out of the health care decision. It 

states: “[A] health care provider is not subject to . . . civil liability . . . except to the same 

extent as would be the case if the principal . . . had made the health care decision . . . under 

like circumstances . . . .” Id. § -208(a). Again, using the example in the text of section 34-

6-208(a)(2) of a decision to withhold life-saving health care, had James decided to withhold

such care, Christian Care would have civil liability only to the extent as would be the case 

had David made that same decision “under like circumstances.” Id. 

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 conducted 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.”

Tenn. Code Ann. § 34-6-208(a). The Defendants invoke the immunity provision to 

forestall inquiry into David’s capacity and ensure arbitration of the parties’ dispute. But
- 17 -

the statute offers protection from liability or prosecution—not from litigating in a particular 

forum.

Thus, considering the plain language of section 34-6-208(a), Defendants do not 

meet the requirements in the Durable Power of Attorney for Health Care Act that must be 

met in order for health care providers to get statutory immunity. 

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 section 34-6-208, the immunity 

provision in the Durable Power of Attorney for Health Care Act. See Owens, 263 S.W.3d 

at 889 n.4 (citing Tenn. Code Ann. § 34-6-208). 

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 enter into an 

arbitration agreement with a healthcare facility and waive the principal’s right to a trial by 

jury. Id. On November 8, 2007, the Owens Court issued an opinion to that effect and 

remanded the case to the trial court for further proceedings. Id. at 879, 889.18 

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 allege that the Court improperly 

allowed discovery as to the principal’s competence to sign the power of 

attorney. 

 

18 The Owens Court stated: 

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.

Id. at 889 (citing Berger v. Cantor Fitzgerald Sec., 942 F. Supp. 963, 966 (S.D.N.Y. 1996)). 
- 18 -

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 Tenn. Code 

Ann. § 34-6-208). Defendants argue that Owens was correct and should apply here.

19

We cannot consider the Owens Court’s reasoning on section 34-6-208(a) because 

the opinion gives us none. We must, however, consider any factual distinctions from this 

case. For example, in Owens, unlike this case, execution of the arbitration agreement was 

required as a precondition of admission to the facility. Id. at 887. So it is possible the 

 

19 Plaintiff argues that the language in footnote four of Owens was dicta. It was not. The Court of 

Appeals in this case correctly noted that “[d]ictum has been described as ‘a remark or opinion uttered by 

the way’ that ‘has no bearing on the direct route or decision of the case but is made as an aside.’” Welch, 

2022 WL 589926, at *5 (quoting Staten v. State, 232 S.W.2d 18, 19 (Tenn. 1950)). Here, the language at 

issue in footnote four of Owens was affirmative directive to the trial court on what it could not do on remand,

so it was not an “aside.” 
- 19 -

Court found that the defendants in Owens “relied” on the agent’s decision to agree to 

arbitration, within the meaning of section 34-6-208(a). Tenn. Code Ann. § 34-6-208(a)

(providing immunity “if the health care provider relies on a health care decision” (emphasis 

added)).

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 section 

34-6-208 seems subject to question and should not be read as a blanket interpretation of 

that statute. It is not binding in this case. We overrule the holding in footnote four of 

Owens to the extent it is inconsistent with the above analysis of whether the Defendants 

met the conditions for statutory immunity in section 34-6-208(a).

c. Health Care Decisions Act

The immunity provision in the Health Care Decisions Act, section 68-11-

1810(a)(1), was applied by the Court of Appeals to reverse the decision of the trial court.

Welch, 2022 WL 589926, at *10. That statute states:

(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 . . . .

Tenn. Code Ann. § 68-11-1810(a)(1). 

 

Section 68-11-1810(a)(1) is simpler than the immunity provision in the Durable 

Power of Attorney for Health Care Act, but it is similar. As Defendants point out, it broadly 
- 20 -

offers statutory immunity from civil liability to health care providers who act in “good 

faith.” The language in section 68-11-1810(a)(1) differs somewhat though. 

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, id. § 34-6-208(a), the Health Care Decisions Act provides a health care provider 

immunity from civil liability for “[c]omplying with a health care decision of a person 

apparently having authority to make a health care decision for a patient.” Id. § 68-11-

1810(a)(1) (emphasis added). To comply means “[t]o do what is required or requested; to 

conform, submit, or adapt to (a command, demand, requirement, etc.).” Comply, Black’s 

Law Dictionary (11th ed. 2019). The immunity in this statute applies to civil liability “for” 

complying with the apparent agent’s health care decision for the patient. Tenn. Code Ann. 

§ 68-11-1810(a)(1). This statutory language directly links the civil liability to the 

provider’s compliance with the agent’s health care decision. It makes it clear that, to have 

the statutory immunity offered in section 68-11-1810(a)(1), the civil liability of the health 

care provider must arise out of its compliance with the agent’s health care decision. 

As with the Durable Power of Attorney for Health Care Act, the text of section 68-

11-1810(a)(1) offers an example of the type of health care decision to which the immunity 

could apply: “a decision to withhold or withdraw health care.” Id. Thus, if a person with 

apparent authority as an agent decided on a patient’s behalf to withhold health care, and a 

health care provider, acting in good faith, complied with that health care decision, the 

health care provider could benefit from the immunity offered in section 68-11-1810(a)(1). 

Defendants in this case do not meet the requirements for the statutory immunity 

offered in section 68-11-1810(a)(1). Defendants did not “comply” with the agent’s 

decision here.

20

 And again, the Plaintiff’s complaint seeks damages based on wrongful 

death, negligence, and health care liability theories. The Defendants’ potential civil 

liability does not arise out of James’s decision to execute the Arbitration Agreement. 

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 discipline 

for unprofessional conduct.” Id. § -1810(a). The Defendants invoke the immunity 

provision in hopes of requiring arbitration of the parties’ dispute, but the statute does not 

offer protection from litigating in a particular forum.

Thus, considering the plain language of section 68-11-1810(a)(1), Defendants do 

not meet the requirements in the Health Care Decisions Act that must be met in order for 

health care providers to get statutory immunity. 

 

20 We again assume for purposes of this appeal that James’s decision to execute the Arbitration 

Agreement is a “health care decision” under the Health Care Decisions Act.
- 21 -

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 Tenn. Code Ann. §§ 34-6-208(a), 68-11-1810(a)(1). The holding in 

footnote four of Owens on section 34-6-208(a) does not control this case, and we overrule 

it to the extent it is inconsistent with the analysis in this opinion on whether the Defendants 

met the requirements for statutory immunity in section 34-6-208(a). Owens, 263 S.W.3d 

at 889 n.4 (“Discovery should not be permitted, however, concerning the validity of the 

power of attorney or the circumstances surrounding its execution.” (citing Tenn. Code Ann. 

§ 34-6-208)). We reverse the decision of the Court of Appeals and affirm the trial court’s 

decision to consider 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 it.21

Because the Court of Appeals ruled for the Defendants on statutory immunity, that

holding pretermitted Defendants’ second issue of whether the trial court erred in finding 

there was clear and convincing evidence that David lacked the requisite mental capacity 

when he signed the power of attorney for health care. We remand the case to the Court of 

Appeals for consideration of that issue and any other issues raised on appeal not 

pretermitted by our holding in this opinion. 

 

 

21 Plaintiff also raised the issue of whether the Court of Appeals’ determination that the trial court 

erred in looking into the validity of the durable power of attorney for health care improperly favors nursing 

home arbitration agreements over other contracts, contrary to the requirements of 9 U.S.C.A. § 2 and AT&T 

Mobility LLC v. Concepcion, 563 U.S. 333 (2011) and Tennessee contract law. Our holding pretermits this 

issue. 
- 22 -

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