IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 22, 2023 Session

JAMES WILLIAMS v. SMYRNA RESIDENTIAL, LLC ET AL.

Appeal by Permission from the Court of Appeals

Circuit Court for Rutherford County

No. 78245 Bonita Jo Atwood, Judge

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No. M2021-00927-SC-R11-CV

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HOLLY KIRBY, C.J., dissenting.

I agree with many of the points made in Justice Lee’s dissenting opinion. I write 

separately out of concern about the practical implications of the majority’s decision to leave

the law so unsettled in an area that touches so many. 

Whether or not one agrees with the holding in Owens v. National Health 

Corporation, 263 S.W.3d 876 (Tenn. 2007) (abrogated on other grounds by Welch v. 

Oaktree Health & Rehab. Ctr., LLC, 674 S.W.3d 881 (Tenn. 2023)), its holding was clear. 

Under Owens, an attorney-in-fact acting under a durable power of attorney for health care 

had authority to sign a nursing home admissions agreement that included an arbitration 

provision. This was premised on the Court’s holding that the decision to admit a relative 

to a long-term care facility is a “health care decision” within the meaning of the Durable 

Power of Attorney for Health Care Act, and execution of the entire admissions 

agreement—including the arbitration agreement—was “necessary to ‘consent . . . to health 

care.’” See id. at 884 (citing Tenn. Code Ann. §§ 34-6-201(3), 34-6-204(b)). As a result

of Owens, it was well-settled that a health care power of attorney was needed—and 

sufficient—to complete all of the paperwork to obtain health care for a loved one. 

“Was” well-settled. No more. The majority does not overrule Owens but instead 

distinguishes it based on the thinnest of reeds, its assertion that, in Owens, execution of the 

arbitration agreement presented with the facility admission documents was mandatory

while the arbitration agreement in the instant case was not. Respectfully, whether the Court 

in Owens viewed the arbitration agreement as mandatory is unclear. The Owens Court 

02/16/2024
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made no express finding that the arbitration agreement was mandatory. The admissions

agreement did not contain any language conditioning admission to the defendant’s facility 

on the arbitration agreement, and the arbitration agreement contained a separate signature 

block from the larger admissions agreement. See id. at 880–81. Likewise, there was no 

circumstantial evidence in Owens to suggest that the facility required consent to arbitration 

as a condition of the principal’s admission. In fact, when asked by the plaintiff to consider 

whether the arbitration agreement was unenforceable on unconscionability grounds, the 

Court specifically noted the lack of evidence concerning “the circumstances under which 

Daniel signed the arbitration agreement on behalf of King, including whether the 

arbitration agreement was offered on a ‘take it or leave it basis.’” Id. at 889 (emphasis 

added). It declined to address “whether the arbitration agreement [was] unconscionable 

due to the limited nature of the factual record.” Id. 

The majority goes to surprising lengths to show that the arbitration agreement in 

Owens really and truly was mandatory, even going so far as to plumb briefs filed by the 

parties after this Court’s opinion was filed. This is beside the point if the Owens Court

itself viewed the question as unclear. 

This tees up the main point—the question of whether the arbitration agreement was 

mandatory had little to do with the Owens Court’s reasoning on whether signing the 

arbitration agreement was a health care decision. The Court construed the durable power 

of attorney for health care in that case “in accordance with . . . the Tennessee Durable 

Power of Attorney for Health Care Act.” Id. at 884. Applying the Act, Owens held that 

one acting pursuant to a durable power of attorney for health care may sign a nursing-home 

contract that includes an arbitration agreement. Id. The Owens Court reasoned that the 

arbitration agreement was part and parcel of the overall health care decision to admit the 

relative into a nursing home, one of the many sub-decisions made as part of the process.

Id. at 884-85. On that basis, Owens plainly held that, under the Tennessee Durable Power 

of Attorney for Health Care Act, executing the arbitration agreement was a “health care 

decision.” 

In this case, the majority frames the question as “whether entering the arbitration 

agreement is a ‘health care decision’ within the meaning of the Durable Power of Attorney 

for Health Care Act.” Owens held that the answer to that question is “yes.” Despite this 

holding, citing its view that the arbitration agreement in Owens was “a condition of 

admission to the facility,” the majority shunts Owens off to one side, characterizes the 

question on appeal in this case as “a matter of first impression,” and proceeds with a textual 

analysis of the Durable Power of Attorney for Health Care Act that ignores the bulk of 

Owens’s reasoning. 
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This leaves practitioners and trial courts with two binding Tennessee Supreme Court 

decisions with analyses that cannot be reconciled or synthesized. In effect, the majority 

overrules Owens without engaging in this Court’s traditional analysis for reconsidering its 

precedent. See In re Estate of McFarland, 167 S.W.3d 299, 306 (Tenn. 2005) (“Generally, 

well-settled rules of law will be overturned only when there is obvious error or 

unreasonableness in the precedent, changes in conditions which render the precedent 

obsolete, the likelihood that adherence to precedence would cause greater harm to the 

community than would disregarding stare decisis, or an inconsistency between precedent 

and a constitutional provision.”).

The majority’s decision also ignores other legal developments in this area. Between 

2016 and 2019, the Centers for Medicare & Medicaid Services (“CMS”) enacted new 

regulations for the use of arbitration agreements by long-term care facilities. See Revision 

of Requirements for Long-Term Care Facilities: Arbitration Agreements, 84 Fed. Reg. 

34718 (July 18, 2019) (codified at 42 C.F.R. § 48) (providing background on the 

developments in arbitration-related regulations). As enacted, the new regulations prohibit

facilities that participate in Medicare or Medicaid from “requir[ing] any resident or his or 

her representative to sign an agreement for binding arbitration as a condition of admission 

to, or as a requirement to continue to receive care at, the facility.”1

 42 C.F.R. § 

483.70(n)(1). Assuming that facilities are complying with federal law, few arbitration 

agreements for nursing homes arising after the enactment of the CMS regulations would

be considered “mandatory” under the majority’s analysis.2

I am concerned that little will be clear to practitioners or the public in the wake of 

the majority opinion in this case. The majority opinion limits the analysis to a power of 

attorney that does not reference Tennessee Code Annotated section 34-6-109 and bats aside 

section 34-6-108(c)(9). But subsection 34-6-108(c)(9) signals that a health care power of 

attorney is needed for “any decisions regarding medical treatments or health care,” which 

would likely include a related arbitration agreement on health care disputes. Would the 

analysis be different for a power of attorney that does reference Tennessee Code Annotated

 

1 To ensure compliance, facilities must “explicitly inform the resident or his or her representative 

of his or her right not to sign the agreement,” and the agreement “must explicitly state that neither the 

resident nor his or her representative is required to sign an agreement for binding arbitration as a condition 

of admission to, or as a requirement to continue to receive care at, the facility.” 42 C.F.R. §§ 483.70(n)(1), 

(n)(4). 

2 As of 2023, 311 of the 316 licensed nursing homes in Tennessee are Medicare or Medicaid 

participants and are therefore subject to CMS regulations. See Tenn. Health Facilities Comm’n, Rep. to 

113th General Assembly, Nursing Home Inspection and Enforcement Activities, at 4 (Feb. 2023), 

https://www.tn.gov/content/dam/tn/hfc/documents/HFCNursing_Home_Inspection_Enforcement_Report2023.pdf. 
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section 34-6-109? Does the majority create a donut hole of sorts, where, under section 34-

6-108(c)(9), a regular power of attorney is not sufficient to assist a relative in obtaining 

health care, but under the majority’s interpretation of section 34-6-201(3), a health care 

power of attorney is not sufficient either? I am not sure. In an area where people need 

certainty about how to take care of incapacitated loved ones, the majority leaves significant 

uncertainty.

The majority downplays the uncertainty sure to follow its opinion, shrugging that 

“we may only decide the questions that are presented by this case.” Respectfully, the 

problem is not the issue presented in this case. The problem is how the majority chooses

to resolve it. Judges have leeway in how they address the questions presented by the 

parties. If the Court feels that resolving an issue presented by the parties requires us 

reconsider prior precedent, we may ask for supplemental briefing on that question so we 

can address it directly. But the worst choice is to create two irreconcilable binding 

decisions and leave it for others to sort out. 

If the reality is that the majority disagrees with the reasoning in Owens, it would be 

much more practical for the Court to just overrule it. Leaving Owens in its current state of 

legal limbo is untenable. At least overruling Owens would offer the opportunity to clarify 

the overall analytical framework and provide guidance to those who must try to obtain

health care for loved ones who need assistance. 

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HOLLY KIRBY, CHIEF JUSTICE