Elder Law FAX The July 30, 2007, issue of Elder Law FAX, a free newsletter published every other Monday by the Elder Law Practice of Timothy L. Takacs.   Nursing Home Resident Not Bound by Arbitration Agreement Signed by Daughter Cephus Coleman was a World War II veteran. He suffered a wound in battle and had been paralyzed since age 18. Still, he earned a degree, fathered a child and pastored a church. In July of 2003, he became a resident of Grenada Living Center, a nursing home.   After his death, suit was filed by his son for injuries that Cephus suffered allegedly as a result of poor care rendered to Cephus by the nursing home. In its defense, the nursing home cited an admissions contract that was signed by Cephus's sister, Anne.   The contract included an arbitration clause that requires the nursing home resident or its successors first to submit the matter to arbitration rather than filing a lawsuit in court. Cephus's son argued the arbitration provision was not binding because the resident was never a party to the agreement.   Prior to the hearing, several facts were stipulated. Among them, Coleman was mentally competent when admitted. Coleman was not present when his sister signed the admissions agreement. Anne did not have a power of attorney, was not a conservator, guardian and did not otherwise have power over her brother. Coleman later executed a power of attorney in favor of Anne.   After a hearing, the trial court ruled that Coleman was not a party to the agreement and, therefore, was not bound by it.   On appeal to the Mississippi Supreme Court, the nursing home argued that Anne was Cephus's health care surrogate and was empowered to bind him. Initially, the court noted this issue was not raised below and was procedurally barred. Nonetheless, the court noted that under the statute, a patient only has a health care surrogate if he or she lacks mental capacity. Accordingly, said the court, the stipulations at trial resolve that issue in plaintiff's favor.   Grenada also argued that Cephus was bound by the contract as a third-party beneficiary. While the court agreed that in certain cases a non-signatory may be bound, in this case the stipulations at trial indicated that no one had authority to speak for the resident except the resident himself. The trial court then found there was no binding agreement between the resident and the nursing home. The Mississippi Supreme Court found this reasoning persuasive in rejecting the nursing home's arguments. The trial court was affirmed.   Grenada Living Center v. Cephus Coleman, July 26, 2007.