SUMMARY

August 25, 2019

2022COA96

No. 21CA0118, Fresquez v. Trinidad Inn — Health and Welfare 

— Health Care Availability Act — Arbitration Agreements; ADR 

— Arbitration; Agency — Actual Authority — Apparent 

Authority 

A division of the court of appeals considers an agent’s 

authority to bind a principal to an arbitration agreement under the 

Health-Care Availability Act (the Act), §§ 13-64-101 to -503, C.R.S. 

2021. While the Act details the steps a health care provider must 

take to form an enforceable arbitration agreement with a patient, it 

is silent regarding the requirements that a patient’s agent must 

satisfy to bind the patient to an arbitration agreement. In this case, 

the division considers the novel issue of whether an agent with 

actual authority to execute the documents required to admit the 

patient to a health care facility necessarily also possesses the 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
authority to bind the patient to an arbitration agreement with the 

facility.

The division holds that an agent’s actual authority to make 

health care decisions for a patient and to sign the documents 

necessary to admit the patient to a health care facility does not 

encompass the authority to bind the patient to an arbitration 

agreement, unless the patient has granted the agent an unlimited 

power of attorney or otherwise clearly granted the agent the specific 

authority to bind the patient to an arbitration agreement.
COLORADO COURT OF APPEALS 2022COA96

Court of Appeals No. 21CA0118

Las Animas County District Court No. 20CV30010

Honorable J. Clay McKisson, Judge

Ralph R. Fresquez, individually and as Personal Representative of the Estate of 

Beatrice Trujillo, deceased,

Plaintiff-Appellee,

v.

Trinidad Inn, Inc., d/b/a Trinidad Inn; C&G Health Care Management, Inc.; 

and Brittnee Fransua, in her Capacity as Administrator of Trinidad Inn,

Defendants-Appellants.

JUDGMENT AFFIRMED AND CASE 

REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE LIPINSKY

Navarro and Kuhn, JJ., concur

Announced August 25, 2022

Reddick Law, PLLC, Brian D. Reddick, Robert W. Francis, Little Rock, 

Arkansas, for Plaintiff-Appellee

Messner Reeves LLP, Douglas C. Wolanske, Kendra N. Beckwith, Mary Byrne 

Fletcher, Darren D. Alberti, Denver, Colorado, for Defendants-Appellants
1

¶ 1 The Health-Care Availability Act (the Act), §§ 13-64-101 

to -503, C.R.S. 2021, permits health care providers to ask their 

patients to sign arbitration agreements. The General Assembly 

adopted the Act based on its belief that increasing the number of 

medical malpractice cases resolved through arbitration, rather than 

through the judicial system, would help “assure the continued 

availability of adequate health-care services . . . by containing the 

significantly increasing costs of malpractice insurance for medical 

care institutions.” § 13-64-102(1), C.R.S. 2021.

¶ 2 But patients cannot be compelled to surrender their right to 

sue health care providers in a court of law. The Act specifies that, 

although a health care provider may ask a patient to sign an 

arbitration agreement, the patient may not be denied care if the 

patient refuses to sign the agreement or timely exercises the 

statutory right to rescind an arbitration agreement the patient 

previously signed. Thus, a patient must be admitted to a hospital, 

skilled nursing facility, or other health care facility even though the 

patient declined to consent to arbitrate future disputes involving the 

facility.
2

¶ 3 Significantly, although the Act details the steps a health care 

provider must take to form an enforceable arbitration agreement 

with a patient, it is silent regarding the requirements that a 

patient’s agent must satisfy to bind the patient to an arbitration 

agreement. In this case, we consider the novel issue of whether an 

agent with actual authority to execute the documents required to 

admit a patient to a health care facility necessarily also possesses 

the authority to bind the patient to an arbitration agreement with 

the facility.

¶ 4 We hold that when an agent has authority to execute the 

documents necessary for admission of a patient to a health care 

facility, such authority does not, without more, encompass the 

authority to bind the patient to an arbitration agreement where the 

patient was unaware the facility would ask the agent to sign an 

arbitration agreement and the patient never discussed arbitration 

with the agent or with representatives of the facility.

¶ 5 In his lawsuit against defendants, Trinidad Inn, Inc., a skilled 

nursing facility; C&G Health Care Management, Inc., which owns, 

operates, and manages Trinidad Inn; and Brittnee Fransua, in her 

capacity as administrator of Trinidad Inn (collectively, the Trinidad 
3

defendants), plaintiff, Ralph R. Fresquez, alleged that their 

negligence caused the death of Fresquez’s mother, Beatrice Trujillo, 

while she was a resident at Trinidad Inn. The Trinidad defendants 

moved to compel arbitration based on an arbitration agreement that 

Fresquez signed, purportedly in his capacity as Trujillo’s agent, at 

the time of Trujillo’s admission to Trinidad Inn. Following an 

evidentiary hearing, the district court denied the Trinidad 

defendants’ motion on the grounds that the arbitration agreement 

was invalid. 

¶ 6 The Trinidad defendants appeal the district court’s order 

denying their motion to compel arbitration. We affirm.

I. Background

¶ 7 Trujillo decided to move into Trinidad Inn after finding it 

difficult to live alone. Fresquez assisted Trujillo with her admission 

to Trinidad Inn. As part of this process, he provided the social 

services assistant at Trinidad Inn with a referral packet from 

Trujillo’s primary care physician. The referral packet included a 

note from the physician saying that “attorney is requesting nursing 

home placement” for Trujillo. The social services assistant said she 
4

believed the reference to “attorney” meant that Trujillo had executed 

a power of attorney authorizing Fresquez to act on her behalf.

¶ 8 Fresquez coordinated Trujillo’s admission to Trinidad Inn with 

the social services assistant. The social services assistant testified 

that, at the time of Trujillo’s admission, Fresquez told her that he 

held a power of attorney for Trujillo. The social services assistant 

never saw any such power of attorney, however. 

¶ 9 Fresquez recalled that, shortly after he and Trujillo arrived at 

Trinidad Inn for Trujillo’s admission, the social services assistant 

called him to her office “to sign . . . papers.” One of those papers 

was a “Voluntary Agreement for Arbitration” (the arbitration 

agreement). The arbitration agreement stated that “[t]he parties 

agree that they shall submit to binding arbitration all disputes 

against each other.” It defined the parties as “Trinidad Inn, 

including its Owners, Managers, Employees, and Agents,” and “the 

Resident.” The arbitration agreement defined “the Resident” as 

Trujillo and her “family, estate, heirs, personal representatives, or 

. . . any person claiming that a duty of care arises from [Trujillo’s] 

stay and care at [Trinidad Inn].” 
5

¶ 10 Fresquez later said that he signed the arbitration agreement, 

together with the other documents the social services assistant 

provided to him, because he believed that Trinidad Inn would not 

admit Trujillo if he did not sign it. No representative of Trinidad Inn 

discussed the arbitration agreement or the other documents with 

Trujillo. Trujillo died six months after her admission to Trinidad 

Inn. 

¶ 11 In denying the Trinidad defendants’ motion to compel 

arbitration, the district court ruled that (1) Fresquez possessed 

actual authority to bind Trujillo to the arbitration agreement; (2) the 

“rule of equal dignities” invalidated such authority, however, 

because no document memorialized Fresquez’s authority; and 

(3) Fresquez lacked apparent authority to bind Trujillo to the 

arbitration agreement. 

II. Analysis

¶ 12 The Trinidad defendants contend that the district court erred 

by ruling that the arbitration agreement was invalid. They 

specifically argue that Trujillo granted Fresquez actual authority to 

bind her to the arbitration agreement and that the equal dignities 

rule does not apply here, even though no writing memorialized 
6

Fresquez’s authority to act on behalf of Trujillo at the time of 

Trujillo’s admission to Trinidad Inn. In the alternative, they 

contend that Fresquez possessed apparent authority to bind Trujillo 

to the arbitration agreement. 

A. Standard of Review

¶ 13 “We review de novo the district court’s decision on a motion to 

compel arbitration.” Lujan v. Life Care Ctrs. of Am., 222 P.3d 970, 

972 (Colo. App. 2009). “In considering a motion to compel 

arbitration, the district court must first determine whether a valid 

agreement to arbitrate exists between the parties to the action.” Id. 

“The court may properly refuse to compel arbitration only when 

there is no valid agreement to arbitrate or when the issue sought to 

be arbitrated is clearly beyond the scope of the arbitration 

provision.” Id. “Whether a valid agreement to arbitrate exists is a 

matter of law that we review de novo.” Id. 

¶ 14 In this case, the validity of the arbitration agreement hinges on 

the existence and scope of any agency relationship between Trujillo 

and Fresquez and, specifically, whether Fresquez possessed the 

authority to bind Trujillo to the arbitration agreement. “Whether an 

agency relationship exists generally is a question of fact, though the 
7

court may decide the question as one of law when the facts are 

undisputed.” Villalpando v. Denver Health & Hosp. Auth., 181 P.3d 

357, 363 (Colo. App. 2007); see also Gross v. GGNSC Southaven, 

L.L.C., 817 F.3d 169, 180 (5th Cir. 2016) (holding that the scope of 

a son’s actual authority to bind his mother to a nursing home’s 

arbitration agreement was “a question of fact”); Rush Creek Sols., 

Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App. 2004)

(“The issue of apparent authority is generally an issue of fact to be 

determined by the trial court. . . . However, if the underlying facts 

are undisputed, fact finding is not required, and the legal effect of 

those facts constitutes a question of law.”). 

¶ 15 “On appeal, we review the trial court’s factual findings under a 

clear error standard.” Villalpando, 181 P.3d at 363. We “won’t 

disturb such findings if there is any evidence in the record 

supporting them.” Woodbridge Condo. Ass’n v. Lo Viento Blanco, 

LLC, 2020 COA 34, ¶ 24, 490 P.3d 598, 606, aff’d, 2021 CO 56, 

489 P.3d 735.
8

B. Applicable Law

1. Arbitration Agreements Under the Act

¶ 16 As a general rule, Colorado favors arbitration agreements. See 

J.A. Walker Co. v. Cambria Corp., 159 P.3d 126, 128 (Colo. 2007). 

But health care arbitration agreements, unlike other types of 

arbitration agreements, are subject to strict requirements set forth 

in the Act. See § 13-64-403, C.R.S. 2021. Although “the [Act] 

allows arbitration of disputes, [it] also contains protective provisions 

curbing abusive practices in obtaining agreements to arbitrate.” 

Moffett v. Life Care Ctrs. of Am., 219 P.3d 1068, 1073 (Colo. 2009). 

¶ 17 The Act provides that arbitration agreements must be 

voluntary. § 13-64-403(1) (“It is the intent of the general assembly 

that an arbitration agreement be a voluntary agreement between a 

patient and a health-care provider . . . .”). It specifies that “[n]o 

health-care provider shall refuse to provide medical care services to 

any patient solely because such patient refused to sign [an 

arbitration agreement] or exercised the ninety-day right of 

rescission.” § 13-64-403(7). Health care providers must include 

this statutory language, among other required disclosures, in any 

agreement with a patient containing an arbitration provision. 
9

§ 13-64-403(4). The statement must appear “[i]mmediately 

preceding the signature lines for such an agreement . . . printed in 

at least ten-point, bold-faced type.” Id. A health care provider’s 

failure to comply with these statutory requirements renders a 

health care arbitration agreement unenforceable. Johnson v. 

Rowan Inc., 2021 COA 7, ¶ 24, 488 P.3d 1174, 1179.

2. Actual Authority

¶ 18 “[A]n agent acts with actual authority when, at the time of 

taking action that has legal consequences for the principal, the 

agent reasonably believes, in accordance with the principal’s 

manifestations to the agent, that the principal wishes the agent so 

to act.” State Farm Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68,

¶ 21, 396 P.3d 651, 656 (quoting Restatement (Third) of Agency 

§ 2.01 (Am. L. Inst. 2006)). Actual authority is premised on “a 

principal’s expressive conduct toward an agent, through which the 

principal manifests assent to be affected by the agent’s action, and 

the agent’s reasonable understanding of the principal’s 

manifestation.” Restatement (Third) of Agency § 2.01 cmt. c. 

¶ 19 “The focal point for determining whether an agent acted with 

actual authority is the agent’s reasonable understanding at the time 
10

the agent takes action.” Id. “An agent has actual authority to take 

action designated or implied in the principal’s manifestations to the 

agent and acts necessary or incidental to achieving the principal’s 

objectives, as the agent reasonably understands the principal’s 

manifestations and objectives when the agent determines how to 

act.” Id. § 2.02(1). “The context in which principal and agent 

interact, including the nature of the principal’s . . . personal 

situation, frames the reasonableness of an agent’s understanding of 

the principal’s objectives.” Id. § 2.02 cmt. e. “An agent’s actual 

authority encompasses acts necessary to accomplish the end the 

principal has directed that the agent achieve.” Id. 

¶ 20 The inquiry into whether an agent possessed the actual 

authority to execute a document on behalf of the principal “contains 

both an objective and a subjective component: the agent must 

subjectively hold the belief that [he] possesses authority, and that 

belief must be objectively reasonable in light of the principal’s 

actions.” Stein Eriksen Lodge Owners Ass’n v. MX Techs. Inc., 2022 

UT App 30, ¶ 26, 508 P.3d 138, 147 (citing Restatement (Third) of 

Agency § 2.02 cmt. e).
11

¶ 21 Actual authority incorporates concepts of express and 

implied authority. State Farm, ¶ 21, 396 P.3d at 656. “Express 

authority exists when the principal directly states that the agent 

may perform a particular act on the principal’s behalf.” Id. In 

contrast, implied authority includes “the authority to perform acts 

that are ‘incidental to, or are necessary, usual, and proper to 

accomplish or perform, the main authority expressly delegated to 

the agent.’” Id. at ¶ 22, 396 P.3d at 656 (quoting Willey v. Mayer, 

876 P.2d 1260, 1264 (Colo. 1994)); see Restatement (Third) of 

Agency § 2.01 cmt. b (stating that implied authority is “actual 

authority either (1) to do what is necessary, usual, and proper to 

accomplish or perform an agent’s express responsibilities or (2) to 

act in a manner in which an agent believes the principal wishes the 

agent to act based on the agent’s reasonable interpretation of the 

principal’s manifestation in light of the principal’s objectives and 

other facts known to the agent”). “Implied authority is actual

authority circumstantially proved.” Citywide Banks v. Armijo, 313 

P.3d 647, 652 (Colo. App. 2011).

¶ 22 In Moffett, the supreme court held that a patient’s attorney-infact possesses the authority to bind the patient to an arbitration 
12

agreement under the Act where the governing power of attorney 

does not limit the agent’s authority “to waive the right to a jury trial 

and submit to arbitration” on behalf of the patient. 219 P.3d at

1076. The supreme court concluded in Moffett that the patient’s 

attorney-in-fact was authorized to bind the patient to an arbitration 

agreement “[a]bsent a restriction or limitation on his authority 

under the [power of attorney] he holds.” Id. at 1079. “The [Act] and 

Colorado’s recognized policy favoring arbitration coexist with wellestablished statutory and common law doctrines governing agency 

and [powers of attorney].” Id. at 1074. 

¶ 23 For purposes of section 13-64-403, the section of the Act 

addressing arbitration agreements, “the term ‘patient’ . . . includes 

a person acting with legal authority under a [power of attorney] to 

enter into such an agreement on behalf of [an] incapacitated 

patient.” Id. The authority of the person acting on behalf of the 

patient can arise from a source other than a power of attorney. See 

id. at 1078 (“[S]ection 13-64-403 cannot be read without regard for 

the extensive statutory and common law doctrine permitting 

authorized agents to bind principals in all kinds of contracts, 

including arbitration agreements.”); Lujan, 222 P.3d at 977 (holding 
13

that a determination of an agent’s scope of authority under a 

medical durable power of attorney must include an analysis of the 

“common law agency principles or applicable statutory powers of

attorney”) (emphasis omitted). 

¶ 24 Moffett teaches that courts must carefully scrutinize the scope 

of an agent’s actual authority to determine whether the agent was 

empowered to bind a patient to a health care arbitration agreement. 

The reasoning of Moffett, therefore, is not limited to cases in which 

the principal executed a power of attorney. For this reason, courts 

must apply the law of agency, subject to the restrictions imposed 

under the Act, to determine whether a patient’s agent is authorized 

to waive the patient’s right to seek damages in a court of law.

3. Apparent Authority

¶ 25 In contrast to actual authority, “[a]pparent authority is the 

power held by an agent or other actor to affect a principal’s legal 

relations with third parties when a third party reasonably believes

the actor has authority to act on behalf of the principal and that 

belief is traceable to the principal’s manifestations.” Restatement 

(Third) of Agency § 2.03 (emphasis added). “Apparent authority . . . 

‘flows only from the acts and conduct of the principal.’” State Farm, 
14

¶ 20, 396 P.3d at 656 (quoting Zions First Nat’l Bank v. Clark Clinic 

Corp., 762 P.2d 1090, 1095 (Utah 1988)). It is “established by proof 

of ‘written or spoken words or other conduct of the principal which, 

reasonably interpreted, causes a person to believe that the principal 

consents to have the act done on his behalf by a person purporting 

to act for him.’” Villalpando, 181 P.3d at 363 (quoting Lucero v. 

Goldberger, 804 P.2d 206, 209 (Colo. App. 1990)). 

C. Fresquez Lacked Actual Authority to Bind Trujillo to

the Arbitration Agreement

¶ 26 We now turn to the nature of the authority that Trujillo 

granted to Fresquez and whether, under that authority, Fresquez 

could bind Trujillo to the arbitration agreement. This analysis 

requires us to determine the type of authority that Trujillo provided 

to Fresquez and the scope of that authority. The parties agree, and 

the record reflects, that Trujillo never executed a power of attorney 

appointing Fresquez as her agent before Fresquez signed the 

arbitration agreement.

1. The District Court Did Not Clearly Err by Finding that 

Fresquez Possessed Actual Authority to Make Health Care 
15

Decisions and Execute Documents Necessary to Admit Trujillo 

to Trinidad Inn

¶ 27 Based on undisputed evidence presented at the hearing, the 

district court found that 

 Trujillo wanted Fresquez to make decisions regarding her 

medical care and her admission to Trinidad Inn; 

 Fresquez possessed actual authority to “make admission 

decisions and sign documents for the purpose of having 

[Trujillo] admitted to Trinidad Inn”; 

 before Trujillo’s admission, Trujillo manifested her assent 

for Fresquez to sign such documents; 

 Fresquez “signed the admission documents so that 

[Trujillo] could be admitted” to Trinidad Inn;

 Fresquez “reasonably believed that he was carrying out 

[Trujillo’s] wishes when he signed the admission 

documents”; and

 “Trujillo’s actions and statements after her admission 

corroborate [Fresquez’s] testimony that he was 

authorized to make admission decisions and sign 
16

documents for the purpose of having her admitted to 

Trinidad Inn.”

¶ 28 The evidence confirms that Trujillo wanted Fresquez to act as 

her agent in making medical care decisions on her behalf, including 

the decisions necessary for her admission to Trinidad Inn. We thus 

conclude that the district court did not clearly err by finding that 

Fresquez possessed actual authority to make medical care decisions 

for Trujillo and to execute the admission documents on her behalf.

2. The District Court Erred by Determining that Fresquez 

Possessed Actual Authority to Bind Trujillo to the 

Arbitration Agreement 

¶ 29 The district court’s characterization of Fresquez’s actual 

authority did not stop with its finding that Trujillo authorized 

Fresquez to make medical care decisions for her and to execute 

Trinidad Inn’s admission documents on her behalf. The district 

court also said that, by signing the arbitration agreement, Fresquez 

was “making an admission decision for . . . Trujillo” and “the 

[arbitration agreement] was within the scope of documents that 

[Trujillo] gave [Fresquez] authority to sign.” 

¶ 30 These statements can be read in one of two ways. They can be 

read as further findings of fact. Alternatively, they can be 
17

interpreted as a legal conclusion that, under the Act, Fresquez’s 

actual authority “to make admission decisions and sign documents 

for the purpose of having her admitted to Trinidad Inn” necessarily 

meant he possessed the authority to bind Trujillo to the arbitration 

agreement. 

¶ 31 If the district court’s statements are findings of fact based on 

evidence presented at the hearing, we review them for clear error. 

See Villalpando, 181 P.3d at 363. If they are a legal determination, 

we review de novo whether, under the Act, Fresquez’s authority to 

“make admission decisions” and sign admission documents for 

Trujillo necessarily encompassed the authority to bind Trujillo to 

the arbitration agreement. See Johnson, ¶ 16, 488 P.3d at 1178.

a. If the District Court’s Statements Regarding Fresquez’s 

Authority to Bind Trujillo to the Arbitration Agreement Were 

Findings of Fact, They Were Clearly Erroneous

¶ 32 The record does not establish that, based on Trujillo’s 

“expressive conduct,” Fresquez reasonably understood that Trujillo 

wished for him to waive her right to seek a legal remedy through the 

judicial system. See Restatement (Third) of Agency § 2.01 cmt. c 

(explaining that determining whether the agent is authorized to 

perform certain acts requires both the “principal’s expressive 
18

conduct” and the agent’s “reasonable understanding” of the 

principal’s wishes manifested through that conduct).

¶ 33 The district court did not find, and the record does not show, 

that Trujillo and Fresquez ever discussed the arbitration agreement 

specifically or the concept of arbitration generally. The record 

contains no evidence that any of Trujillo’s words or conduct related 

in any way to arbitration. Therefore, the district court had no 

evidentiary basis to support a finding of fact that Fresquez 

reasonably understood that Trujillo had granted him actual 

authority to bind her to the arbitration agreement.

¶ 34 The Trinidad defendants argue that, because Fresquez made 

certain financial and administrative decisions on Trujillo’s behalf, 

his actual authority necessarily extended to binding Trujillo to the 

arbitration agreement. But the record shows that those financial 

and administrative decisions related exclusively to Trujillo’s 

admission to and residency at Trinidad Inn. Such decisions were 

thus “incidental to, or [were] necessary, usual, and proper to 

accomplish or perform, the main authority expressly delegated to 

the agent.” State Farm, ¶ 22, 396 P.3d at 656 (quoting Willey, 876 

P.2d at 1264); see Restatement (Third) of Agency § 2.01 cmt. b. 
19

¶ 35 For the same reasons, to the extent the district court found 

that Fresquez reasonably believed he possessed the authority to 

bind Trujillo to the arbitration agreement simply because he was 

authorized to make health care decisions for her and to sign the 

admission documents, such finding was also clearly erroneous. 

The arbitration agreement expressly stated, consistent with the Act, 

that Trinidad Inn could not “refuse to provide medical care services” 

to a patient who declined to sign it. For this reason, the arbitration 

agreement cannot be reasonably understood to be an “admission 

document.” Thus, nothing in the record indicated that Fresquez 

could have reasonably believed, through Trujillo’s expressed wish 

that he make health care decisions for her and sign the admission 

documents, that he possessed actual authority to bind Trujillo to 

the arbitration agreement. Rather, the record shows that, as 

Trujillo was being admitted to Trinidad Inn, the social services 

assistant handed Fresquez documents and he signed them.

¶ 36 Based on the district court’s findings of fact, supported by the 

evidence, that Fresquez’s actual authority included making medical 

care decisions for Trujillo and executing the documents necessary 

for Trujillo’s admission to Trinidad Inn, we next turn to the legal 
20

question of whether, under the Act, such authority necessarily 

encompassed the authority to bind Trujillo to the arbitration 

agreement.

b. If the District Court’s Statements Regarding Fresquez’s 

Authority to Bind Trujillo to the Arbitration Agreement Were a 

Legal Determination, They Were Erroneous 

¶ 37 “An agent has a duty to take action only within the scope of 

the agent’s actual authority.” Restatement (Third) of Agency § 8.09. 

In other words, “[i]n the context of the agent’s relationship with the 

principal, the boundary of an agent’s rightful action is the scope of 

the agent’s actual authority.” Id. § 8.09 cmt. b. “An agent’s actual 

authority encompasses acts necessary to accomplish the end the 

principal has directed that the agent achieve.” Id. § 2.02 cmt. e; see 

also State Farm, ¶ 22, 396 P.3d at 656. 

¶ 38 Here, the “end” that Trujillo directed Fresquez to achieve was 

her admission to Trinidad Inn so she could receive medical care at 

that facility. The district court found that “Trujillo’s actions and 

statements after her admission corroborate [Fresquez’s] testimony 

that he was authorized to make admission decisions and sign 

documents for the purpose of having her admitted to Trinidad Inn.” 

(Emphasis added.) 
21

¶ 39 In making its determination that Fresquez’s actual authority 

regarding health care and admission decisions included the 

authority to bind Trujillo to the arbitration agreement, the district 

court distinguished Lujan on four grounds: (1) this case does not 

involve a health care proxy, and Trujillo was neither incapacitated 

nor mentally incompetent at the time of her admission to Trinidad 

Inn; (2) Trujillo chose her decision-maker and relied on him for that 

purpose; (3) Trujillo “determined that [Fresquez] had authority to 

make decisions on her behalf that included decisions related to her 

admission at Trinidad Inn”; and (4) this case involves evidence of “a 

formal understanding” between Fresquez and Trujillo regarding the 

existence and scope of Fresquez’s authority. We disagree that the 

reasoning of Lujan is inapposite here.

¶ 40 We acknowledge that, in Lujan, a division of this court 

considered whether a designated health care proxy is empowered to 

bind an incapacitated patient to an arbitration agreement. 222 

P.3d at 971. But, despite the narrowness of the issue presented in 

Lujan, the division’s discussion of the distinction between the 

documents required to admit a patient to a skilled nursing facility 

and an arbitration agreement is pivotal to our analysis. Id. at 973-
22

74. Particularly relevant here, the division contrasted a health care 

proxy’s statutorily prescribed authority with the more expansive 

authority that a principal-agent relationship can create. Id. at 973. 

¶ 41 “[A] health care proxy is distinct from an attorney-in-fact 

acting under a power of attorney.” Id. at 977. The division 

reasoned that “the statutory authority afforded a health care proxy 

should be construed narrowly, unlike the broad powers presumed 

to be afforded under a medical durable power of attorney.” Id.; see 

also Moffett v. Life Care Ctrs. of Am., 187 P.3d 1140, 1145 (Colo. 

App. 2008) (“[A]bsent a limitation in the medical durable power of 

attorney, an attorney-in-fact can make exactly the same types of 

medical treatment decisions that the principal could make if he or 

she had the mental capacity to do so.”), aff’d, 219 P.3d 1068.

¶ 42 Lujan’s reasoning is not limited to cases involving health care 

proxies, which are executed on behalf of a patient who “lacks 

decisional capacity to provide informed consent to or refuse medical 

treatment.” 222 P.3d at 972. The division in Lujan noted the “clear 

legislative intent to distinguish between an agreement to provide 

medical services (including an agreement to admit a patient to a 
23

health care facility) and an agreement to arbitrate a health care 

dispute.” Id. at 974 (citing § 13-64-403(7)). 

¶ 43 For purposes of the health care proxy provisions at issue in 

Lujan, “medical treatment” means “specific medical procedures 

(e.g., artificial nourishment and hydration) or forms of healing (e.g., 

religious and spiritual healing).” Id. (citing § 15-18.5-101(1)(a), (2), 

C.R.S. 2021). In addition, the part of the probate code addressing 

powers of attorney similarly defines “‘medical treatment’ as ‘the 

provision, withholding, or withdrawal of any health care, medical 

procedure, including artificially provided nourishment and 

hydration, surgery, cardiopulmonary resuscitation, or service to 

maintain, diagnose, treat, or provide for a patient’s physical or 

mental health or personal care.’” Id. at 973 (quoting 

§ 15-14-505(7), C.R.S. 2021). 

¶ 44 According to the division in Lujan, under either definition, an 

agent’s authority to make decisions regarding a patient’s “medical 

treatment” does not encompass the authority to sign an arbitration 

agreement. Id. at 974. Importantly, the division in Lujan held that 

a decision to execute an arbitration agreement “is not integral to a 

patient’s health and well-being.” Id. at 976. Instead, a decision to 
24

arbitrate pertains exclusively to a person’s legal rights and 

remedies. See Colo. Const. art. XVIII, § 3; §§ 13-22-201 to -230, 

C.R.S. 2021. Thus, a decision to arbitrate, or not to arbitrate, is 

fundamentally different from a decision involving medical 

treatment. 

¶ 45 In examining the scope of the authority granted to an agent 

through a health care proxy, the Lujan court noted section 

13-64-403(7)’s express prohibition on conditioning the provision of 

medical services upon execution of an arbitration agreement. 

Lujan, 222 P.3d at 974. The General Assembly’s decision to delink 

the concept of arbitration from the concept of providing medical 

services underscores that granting an agent authority to make 

medical care decisions for a patient does not authorize the agent to 

waive the patient’s right to seek relief in a court of law. Thus, the 

authority of an agent to execute an arbitration agreement on behalf 

of a patient must rest on a source other than the agent’s 

authorization to make health care decisions for the patient.

¶ 46 Following the compelling logic of Lujan and the language of the 

Act, we hold that an agent’s actual authority to make health care 

decisions for a patient and to sign the documents necessary to 
25

admit the patient to a health care facility does not encompass the 

authority to bind the patient to an arbitration agreement, unless 

the patient has granted the agent an unlimited power of attorney or 

otherwise clearly granted the agent the specific authority to bind 

the patient to an arbitration agreement. Thus, we conclude that, as 

a matter of law, the scope of Fresquez’s actual authority did not 

extend to binding Trujillo to the arbitration agreement. In light of 

our holding, we need not consider whether the district court erred 

by holding that Fresquez lacked authority to bind Trujillo to the 

arbitration agreement under the rule of equal dignities.

D. The District Court Did Not Err By 

Finding That Fresquez Lacked Apparent Authority

¶ 47 Having concluded that Fresquez lacked actual authority to 

bind Trujillo to the arbitration agreement, we next review the 

district court’s determination that he also lacked apparent authority 

to do so. “The issue of apparent authority is generally an issue of 

fact to be determined by the trial court.” Rush Creek, 107 P.3d at 

406. Apparent authority can apply to “agents who act beyond the 

scope of their actual authority.” Restatement (Third) of Agency 

§ 2.03 cmt. a. 
26

¶ 48 We conclude that the district court did not clearly err by 

making this finding.

1. Fresquez Did Not Have Apparent Authority to

Bind Trujillo to the Arbitration Agreement

¶ 49 The Trinidad defendants argue that the district court erred by 

requiring that “a principal’s manifestation of an agent’s authority to 

act be made prior to the act in question.” They contend that the 

district court improperly inserted a temporal requirement into the 

apparent authority analysis by considering only Trujillo’s 

statements and conduct preceding Fresquez’s execution of the 

arbitration agreement. They further argue that the Restatement of 

Agency rejects this temporal requirement by providing that 

apparent authority “applies to any set of circumstances under 

which it is reasonable for a third party to believe that an agent has 

authority.” Restatement (Third) of Agency § 2.03 cmt. c (emphasis 

added). 

¶ 50 We need not consider the timing of a principal’s 

manifestations of an agent’s apparent authority, however, because 

the record lacks any evidence that Trujillo ever gave any 

manifestations regarding arbitration. As the district court found, 
27

Trujillo generally knew of and authorized Fresquez to sign the 

documents and make the decisions related to her admission to and 

care at Trinidad Inn, both before and after she moved in. But the 

Trinidad defendants could not have reasonably believed that 

Fresquez also possessed apparent authority to sign the arbitration 

agreement on Trujillo’s behalf. 

¶ 51 The district court based its finding that Fresquez lacked 

apparent authority to bind Trujillo to the arbitration agreement on 

the testimony of the social services assistant and Fransua, Trinidad 

Inn’s administrator, at the hearing. Those employees conceded 

that, before Trujillo’s admission to Trinidad Inn, she did not make 

any manifestation to them, whether by word or deed, that Fresquez 

was authorized to bind her to the arbitration agreement. 

¶ 52 Indeed, nothing Trujillo said or did at any time suggested that 

she was aware of the arbitration agreement or that she intended to 

grant Fresquez the authority to sign away her right to a trial in a 

court of law. Moreover, the record does not contain any evidence 

suggesting that Trujillo ever learned of the existence of the 

arbitration agreement. 
28

¶ 53 The social services assistant’s and Fransua’s testimony does 

not indicate otherwise. The social services assistant testified that 

(1) she received paperwork from Trujillo’s referring doctor saying 

that Trujillo’s “attorney” wanted Trujillo to move to a nursing home; 

(2) the social services assistant coordinated Trujillo’s move to 

Trinidad Inn with Fresquez; and (3) Fresquez signed the admission 

documents while Trujillo settled into her room. Fransua testified 

that she believed Fresquez was Trujillo’s representative for purposes 

of signing the arbitration agreement because he “was present with 

[Trujillo] in asking [the primary care physician] for the nursing 

home placement,” and he and Trujillo “work[ed] towards that goal of 

getting [Trujillo] in the nursing home.” This testimony supports the 

district court’s finding that Fresquez lacked apparent authority to 

bind Trujillo to the arbitration agreement.

¶ 54 Although the district court found that Fresquez told the 

Trinidad defendants he was Trujillo’s attorney-in-fact, neither the 

social services assistant nor Fransua ever saw such a power of 

attorney. (A power of attorney must be in writing. See Willey, 876 

P.2d at 1264 (explaining that a power of attorney is “a written

document by which one party, as principal, appoints another as 
29

agent (attorney-in-fact) and confers upon the latter the authority to 

perform certain specified acts or kinds of acts on behalf of the 

principal”).) 

¶ 55 Further, the Trinidad defendants contend that the purpose of 

the apparent authority doctrine is to “protect[] third parties who, in 

good faith, rely on their belief that an agency relationship exists 

between the apparent principal and agent.” See Villalpando, 181 

P.3d at 363. But nothing in the record shows that they relied on 

their belief that Fresquez possessed the authority to bind Trujillo to 

the arbitration agreement. As noted in Part II.B.1 supra, Trinidad 

Inn could not have refused admission to Trujillo even if the Trinidad 

defendants learned at the time that Trujillo had not executed a 

power of attorney. Thus, consistent with section 13-64-403 of the 

Act, the validity of the arbitration agreement, and Fresquez’s 

authority to bind Trujillo to it, was of no consequence to Trinidad 

Inn’s decision to admit Trujillo.

¶ 56 The Trinidad defendants further assert that their reliance on 

Trujillo’s manifestations following Fresquez’s execution of the 

arbitration agreement “caused [them] to forebear pressing further 

for the power of attorney . . . or to request a signature from . . . 
30

Trujillo” on the arbitration agreement. But nothing in the record 

supports this assertion.

¶ 57 Indeed, the social services assistant asked Fresquez to provide 

her with a copy of the power of attorney after Trujillo’s admission. 

But she dropped the subject after contacting him about it “a few 

times.” The social services assistant’s testimony undercuts the 

Trinidad defendants’ argument that Trujillo’s manifestations caused 

them to forebear pressing Fresquez further for the purported power 

of attorney. The social services assistant did not say that she 

stopped asking Fresquez for the power of attorney based on 

anything Trujillo said or did. And nothing in the record indicates 

that Trujillo would have signed the arbitration agreement if Trinidad 

Inn had asked her to do so or that Trujillo’s manifestations induced 

the Trinidad defendants not to ask her to sign it.

¶ 58 In sum, Trujillo’s words and actions indicated only that 

Fresquez possessed the authority to make decisions related to 

Trujillo’s medical care and her admission to Trinidad Inn. Trujillo 

never made any manifestations indicating that Fresquez also had 

the authority to bind her to the arbitration agreement. See Lujan, 

222 P.3d at 976. Thus, we affirm the district court’s determination 
31

that Fresquez lacked apparent authority to execute the arbitration 

agreement on Trujillo’s behalf.

2. Trujillo Did Not Ratify the Arbitration Agreement

¶ 59 For the same reasons, we conclude that Trujillo did not ratify 

the arbitration agreement. The Trinidad defendants argue that, 

even if Fresquez lacked apparent authority to bind Trujillo to the 

arbitration agreement, Trujillo later ratified his execution of the 

arbitration agreement through her “knowledge that [Fresquez] was 

making decisions on her behalf without objection — even without 

specific knowledge of the [arbitration agreement].” 

¶ 60 Ratification occurs “when a party ‘with knowledge of all 

material facts’ adopts and confirms an act performed or entered 

into on his behalf by another, without authorization.” Fiscus v. 

Liberty Mortg. Corp., 2014 COA 79, ¶ 40, 373 P.3d 644, 652 

(quoting Siener v. Zeff, 194 P.3d 467, 471 (Colo. App. 2008)), aff’d 

on other grounds, 2016 CO 31, 379 P.3d 278. Here, Trujillo did not 

possess “full knowledge of all material facts.” Id. The district court 

did not find that Trujillo ever knew of the existence or terms of the 

arbitration agreement. 
32

¶ 61 Therefore, we conclude that Trujillo did not ratify Fresquez’s 

execution of the arbitration agreement. 

III. Conclusion

¶ 62 The order denying the Trinidad defendants’ motion to compel 

arbitration is affirmed, and the case is remanded for further 

proceedings consistent with this opinion. 

JUDGE NAVARRO and JUDGE KUHN concur.