The NCSL Blog


By Lisa Soronen

Kindred Nursing Centers v. Clark is the only pre-emption case the U.S. Supreme Court has agreed to decide so far this term. It involves a federal statute fairly characterized as a frequent flier before the court: the Federal Arbitration Act.

Supreme CourtThe question in this case is whether the Federal Arbitration Act pre-empts Kentucky’s rule that an “attorney-in-fact” may bind a principal to an arbitration agreement only if the power-of attorney document expressly refers to arbitration agreements.

A number of parents executed power-of-attorney documents designating one of their children “attorney-in-fact.” While some of these documents gave the children broad rights to act on their parent’s behalf (“to do and perform for me in my name all that I might if present”), none explicitly gave their children the authority to agree to arbitration—rather than a jury trial—to resolve disputes regarding their parent’s legal rights.

All the children signed an arbitration agreement when their parents were admitted to nursing homes. After the parents died in the nursing homes, the children wanted to sue the nursing homes—and avoid arbitration—for various claims.

Under the Federal Arbitration Act, all valid arbitration agreements must be enforced. The Kentucky Supreme Court concluded that the arbitration agreements in this case were not valid. The children did not have the authority to agree to arbitration where the power-of-attorney documents did not expressly state they had that authority.

The Kentucky Supreme Court reasoned that it would be “strange” if a broad grant of authority in a power-of-attorney document allowed the “attorney-in-fact” to waive the principal’s civil rights or right to worship or allowed the “attorney-in-fact” to terminate the principal’s parental rights. So why should an “attorney-in-fact” be “authorized to bargain away his principal's rights of access to the courts and to a jury trial”?

In the Kentucky Supreme Court’s words: “It bears emphasis that the drafters of our Constitution deemed the right to a jury trial to be inviolate, a right that cannot be taken away; and, indeed, a right that is sacred, thus denoting that right and that right alone as a divine God-given right.”

Lisa Soronen is executive director of the State and Local Legal Center and writes frequently about the Supreme Court for the NCSL Blog.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.