Dickerson v. Longoria

GREENE, J. This case concerns a medical malpractice claim that the Estate of Carter Bradley (“the Estate”) 1 filed against Heritage Care, Inc. (“Respondent”). We have been asked to determine whether the Estate may be required to arbitrate its claims against Respondent because of an arbitration agreement that Carman Dickerson (“Dickerson”) allegedly signed on behalf of Carter Bradley (“Bradley”) when Bradley was ⁴²⁶ admitted to Respondent’s nursing home, the St. Thomas More Nursing and Rehabilitation Center (“St. Thomas More”). 2 Prior to Bradley’s death, Dickerson, who is now the personal representative of the Estate in this litigation, represented herself as Bradley’s agent when she signed the arbitration agreement with Respondent. Respondent argues, and the trial court held, that Dickerson was, in fact, Bradley’s agent for purposes of signing the arbitration agreement and that the Estate must submit its claims against Respondent to arbitration in accordance with that agreement. The Estate, on the other hand, contends that it is not bound by the arbitration agreement and supports this contention with a variety of arguments.

We shall decide this case by applying general agency principles to determine whether Bradley authorized Dickerson to sign the arbitration agreement on his behalf. Upon applying those principles, we agree with the Estate that it is not bound by the arbitration agreement because Dickerson did not have actual or apparent authority to bind Bradley to that agreement. The general rule is that one may delegate to another the right to make decisions on his or her behalf. Indeed, in this case there is evidence suggesting that Bradley gave Dickerson authority to make health care and financial decisions on his behalf.

The decision to sign the arbitration agreement in this case was not, however, a health care or financial decision. Instead, it was primarily a decision to waive Bradley’s right of access to the courts and his right to a trial by jury. On the basis of the record in this case, there is no evidence suggesting that Bradley authorized Dickerson to make this type of decision on his behalf or represented to Respondent that Dickerson had authority to do so. Accordingly, we reverse the trial court’s judgment and hold that the Estate is not bound by the arbitration agreement. ⁴²⁷ PROCEDURAL HISTORY Respondent filed a petition in the Circuit Court for Montgomery County, seeking to compel the Estate to arbitrate the medical malpractice claims that the Estate had filed against Respondent. 3 Respondent asserted that the Estate was required to arbitrate those claims pursuant to the arbitration agreement that Dickerson signed when Bradley was admitted to St. Thomas More, arguing that Dickerson signed the agreement as Bradley’s agent.

The court conducted a one-day trial and held that Bradley, and subsequently Bradley’s Estate, was bound by the arbitration agreement. The Estate noted a timely appeal of that ruling to the Court of Special Appeals, and, while the case was before the intermediate appellate court, the Estate petitioned this Court for a writ of certiorari. Before the Court of Special Appeals could issue an opinion in the case, we granted the Estate’s petition. Dickerson v. Longorio, 409 Md. 46 , 972 A.2d 861 (2009).

FACTS This case concerns the arbitration agreement that Dickerson signed when Bradley was admitted to Respondent’s nursing home facility, St. Thomas More. The arbitration agreement purported to bind Bradley to arbitrate claims such as the one the Estate brought against Respondent. The parties do not dispute the facts as described by the trial court. Accordingly, we adopt those findings as follows, with citations and footnotes omitted: ⁴²⁸ [Bradley] suffered from a host of ailments including dementia, schizophrenia, organic brain disease, diabetes, mobility issues, and was unable to care for himself in an independent setting.

Mr. Bradley lived with ... Ms. Dickerson, from sometime in 1997 to October, 2004. During this period, Ms. Dickerson frequently represented that she was Mr. Bradley’s power of attorney and proceeded to make all necessary medical decisions for Mr. Bradley. For example, on July 12, 2004, Ms. Dickerson represented to HCR Manor Care that she was the designated “legal representative” for Mr. Bradley as well as his “legal guardian” with “durable power of attorney for health care/resident advocacy.” On July 14, 2004, the nurse practitioner’s notes indicated that the treatment plans for Mr. Bradley were discussed with Ms. Dickerson “POA,” and again on September 29, 2004, Ms. Dickerson made the representation that she was Mr. Bradley’s power of attorney, though there are notes in Mr. Bradley’s Medical Records which indicate that there was a need to “clarify” Ms. Dickerson’s legal status.

In October 2004, Ms. Dickerson planned to attend a family reunion and was unable to provide care for Mr. Bradley during her trip. The Veteran’s Administration Medical Center (“Medical Center”) provided Ms. Dickerson with a list of nursing homes where Mr. Bradley could stay in her absence. Mr. Bradley was aware that he would be staying for a short time at a nursing home and acquiesced to Ms. Dickerson’s decision as to which nursing home he would reside. On October 6, 2004, Ms. Dickerson, acting on behalf of Mr. Bradley, admitted him to Randolph Hills Nursing Home.

Ms. Dickerson indicated that she was acting as Mr. Bradley’s agent based upon her position “as financial power of attorney appointed by the Resident [Mr. Bradley]” and “as a family member or other person with authority to manage, use or control the Resident[’]s income, funds and/or assets.” While at the facility, Mr. Bradley was diagnosed with tuberculosis, a diagnosis which would later be retracted. Under the impression that Mr. Bradley had a severely ⁴²⁹ contagious disease, Ms. Dickerson made arrangements for him to be admitted to the Medical Center. Once it was explained that Mr. Bradley did not have tuberculosis, the medical notes indicate that Mr. Bradley ... did not want to return to Ms. Dickerson’s home. The Medical Center transferred Mr. Bradley to St. Thomas More Nursing & Rehabilitation Center (“St. Thomas More”) for physical therapy in order to increase Mr. Bradley’s mobility.

Ms. Dickerson discussed the move with Mr. Bradley, who agreed to be transferred. On the day that St. Thomas More admitted Mr. Bradley as a resident, Ms. Dickerson and Mr. Bradley did not discuss his admittance to the facility, but Ms. Dickerson testified that “Mr. Bradley just assumed that she would take care of [it].” Ms. Dickerson testified that she signed “a stack” of papers at the request of Isabel Torres (now Isabel Artega). A form entitled “Obligations of the Agent,” was included in the papers that Ms. Dickerson signed. This form explained the responsibilities of an agent, and Ms. Dickerson signed it as Mr. Bradley’s financial power of attorney.

The admittance papers also included a Resident and Facility Arbitration Agreement (“Agreement”), which is central to the claims in the case. Ms. Dickerson signed the Agreement on behalf of Mr. Bradley. The Agreement provided that any disputes between a resident and the facility shall be settled through arbitration, and “all claims based in whole or in part on the same incident, transaction, or related course of the care or service provided by the Facility to the Resident, shall be arbitrated in one proceeding.” The agreement also stated that “the arbitrator will be selected by the Facility from a list of individuals who are certified in alternative dispute resolution or are retired judges who routinely offer their services as arbitrators,” but also provided that the Agreement may be rescinded by ■written notice within fifteen (15) days. In January, 2005, Mr. Bradley was transferred to Providence Hospital for emergency medical treatment.

Ms. Dickerson did not actively participate in admitting Mr. ⁴³⁰ Bradley to Providence Hospital, but on January 22, 2005, she represented herself as Mr. Bradley’s power of attorney and gave consent for elective transfusion of blood products. On January 27, 2005, Ms. Dickerson, once again, represented herself as Mr. Bradley’s “legal custodian” in a phone conversation with the nurse transfer coordinator at Providence Hospital. Almost a month after Mr. Bradley was admitted to Providence Hospital, he passed away. During his lifetime, Mr. Bradley never executed any documents purporting to make Ms. Dickerson his power of attorney, though Ms. Dickerson readily admits that she was Bradley’s fiduciary payee for purposes of endorsing and depositing his checks.

Based on these facts, the trial court determined that Bradley’s Estate was required to arbitrate its claims against Respondent. First, the trial court rejected the Estate’s argument that the Maryland Health Care Malpractice Claims Act (“Malpractice Claims Act”), Maryland Code (1974, 2006 Repl. Vol.), §§ 3-2A-01 through 3-2A-10 of the Courts and Judicial Proceedings Article, “provides the exclusive means by which medical malpractice claims may be pursued in Maryland----” The court concluded that the Malpractice Claims Act “does not specifically preclude private arbitration as an alternative to a jury trial in the circuit court.” Second, the trial court rejected the Estate’s argument that Dickerson was not Bradley’s agent for purposes of signing the arbitration agreement. The court found that “[tjhere is ... credible evidence to prove that Mr. Bradley not only knew that Ms. Dickerson acted on his behalf, but more importantly, he expected her to act for him and acquiesced to her decisions.” Accordingly, the court concluded that “Ms. Dickerson signed the ... arbitration agreement while acting as Mr. Bradley’s agent” and that Bradley’s Estate “will be bound by the arbitration agreement.” Third, and finally, the court rejected the Estate’s argument that the arbitration agreement was “unconscionable, and therefore, unenforceable, because it ‘allows Heritage Care to unilaterally pick the arbitrator.’” The court noted that while the arbitration agreement “provides that an arbitrator ⁴³¹ would be chosen from a list provided by Heritage Care,” the agreement specified arbitrators who “would be bound by Maryland Rule 17-105, et seq., as well as the Maryland Rules of Professional Conduct and, in the case of the [retired] judges, the Judicial Canons, dealing with impartiality.” The court also noted that “the Agreement could be rescinded by written notice within fifteen (15) days, and it was never a condition for admittance into St. Thomas More.” With these safeguards in place, the court concluded “that the arbitration agreement is not procedurally or substantively unconscionable.” 4 Subsequently, the Estate noted a timely appeal of the second and third rulings from the trial court.

While the case was before the Court of Special Appeals, the Estate filed a petition for certiorari in this Court, asking us to answer the following questions: 1. Absent a power of attorney or other advance directive, does a friend or relative have authority to bind a nursing-home resident to an arbitration agreement included in the nursing-home-admission documents? 2. Is an arbitration agreement providing one party will unilaterally select the sole arbitrator from a list created by that party so one-sided as to be unenforceable? After receiving briefs from both parties 5 and hearing oral arguments, we answer the first question in the affirmative.

We conclude that neither a power of attorney nor any other advance directive is required to bind a nursing-home resident ⁴³² to an arbitration agreement included in nursing-home admission documents when, as in this case, signing the arbitration agreement is not a prerequisite to admission to the nursing home. We further conclude, however, that the arbitration agreement in this case is not binding on Bradley’s Estate because, after applying general agency principles, we conclude that Dickerson did not have actual or apparent authority to bind Bradley to the arbitration agreement. As we conclude that Bradley’s Estate is not bound by the arbitration agreement, we need not address the second question. DISCUSSION Standards of Review The parties disagree as to the standard of review that we should apply to the issue of whether Dickerson was Bradley’s agent for purposes of signing the arbitration agreement in this case.

The Estate argues that we should apply a de novo standard because that is the standard we apply when the issue before us “involves an interpretation and application of Maryland statutory and case law.” Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609, 612 (2002). Respondent argues, to the contrary, that we should apply the more deferential clearly erroneous standard because “[t]he existence of an agency relationship is a question of fact which must be submitted to the factfinder if any legally sufficient evidence tending to prove the agency is offered.” Faya v. Almaraz, 329 Md. 435, 460 , 620 A.2d 327, 339 (1993). 6 Both parties have presented overly-narrow standards of review. This case involves both questions of fact and law. In such a case, we apply different standards of review to the questions of fact and to the questions of law.

See State Security v. American General, 409 Md. 81, 109-11 , 972 A.2d 882, 899 (2009) (explaining the application of different stan ⁴³³ dards of review to different trial court determinations). One of our considerations is whether Dickerson was Bradley’s agent for purposes of binding him to the arbitration agreement. This is a factual determination that we review using the clearly erroneous standard. Faya, 329 Md. at 460 , 620 A.2d at 339 .

Under the clearly erroneous standard, we will not disturb the factual findings of the trial court “[i]f there is any competent evidence to support th[ose] factual findings.” Goff v. State, 387 Md. 327, 338 , 875 A.2d 132, 139 (2005) (quoting Solomon v. Solomon, 383 Md. 176, 202 , 857 A.2d 1109, 1123 (2004)). As to questions of law, both parties have presented legal arguments based on their interpretation of statutory and case law. We consider those arguments de novo; in other words, we review the questions as a matter of law. Goff, 387 Md. at 337-38 , 875 A.2d at 138 .

With these standards of review in mind, we turn to the substantive issues before us. Statutory Limitations The Estate argues that Dickerson could not have been Bradley’s agent for purposes of signing the arbitration agreement because of two Maryland health care statutes. First, the Estate asserts that under the Maryland Health Care Decisions Act (“HCDA”), Maryland Code (1982, 2009 Repl. Vol.), §§ 5-601 through 5-618 of the Health-General Article, an individual cannot become an agent for an incapacitated person unless a formal “advanced directive” has been executed in accordance with the statute.

Second, the Estate argues that under § 19-344 of the Health-General Article, an agent for a nursing home resident may control only the resident’s finances. Upon our review of these statutes, we conclude that neither statute prevented Dickerson from acting as Bradley’s agent for purposes of signing the arbitration agreement in this case. We first address the Estate’s HCDA argument. As both parties point out, the HCDA provides procedures by which an individual may appoint someone to be his or her agent for purposes of making “health care decisions.” See ⁴³⁴ § 5-601(c) of the Health-General Article (defining “agent” under the HCDA).

To this end, the HCDA provides procedures for creating an advance directive “regarding the provision of health care to [the] individual [who is to receive health care], or the withholding or withdrawal of health care from that individual.” § 5-602(a) of the Health-General Article (emphasis added). An advance directive under the HCDA is either a “witnessed written or electronic document, voluntarily executed by the” individual who is to receive health care or a “witnessed oral statement” made by the individual who is to receive health care “in the presence of the attending physician or nurse practitioner and one witness” and “documented as part of the individual’s medical record.” §§ 5-601(b), 5-602(d) of the Health-General Article. Unless otherwise provided in the advance directive, the advance directive becomes effective when the individual to receive health care has been deemed, under procedures that the HCDA specifies, incapable of making an informed decision. § 5-602(e) of the Health-General Article. 7 The Estate argues that the HCDA provides the only procedures by which an individual may appoint another person to be his or her agent for making health care decisions. Bradley did not create an advance directive appointing Dickerson his agent pursuant to the HCDA; the Estate therefore ⁴³⁵ argues that Dickerson did not have authority to sign the arbitration agreement on Bradley’s behalf.

We disagree for two reasons. First, the HCDA pertains only to “health care decisions,” and, as we explain extensively later in this opinion, we disagree that the decision to sign the arbitration agreement in this case was a health care decision. For that reason, the HCDA does not apply to the present case. Second, even if we assume that the decision to sign the arbitration agreement were a health care decision, we disagree that the HCDA applies.

The HCDA establishes procedures by which an individual may make health care decisions to be carried out if he or she is unable to make those decisions for him or herself. This intent is demonstrated by the HCDA’s mandate that treatment may only be provided, withheld, or withdrawn pursuant to the HCDA if “the patient is incapable of making an informed decision regarding the treatment.” § 5-606(a)(l) of the Health-General Article; see also Wright v. Johns Hopkins Health, 353 Md. 568, 577 , 728 A.2d 166, 170 (1999) (explaining this requirement). 8 In such a case, the health care provider looks to the instructions provided in the patient’s advance directive, § 5-602 of the Health-General Article, or, if no advance directive exists or the person designated as the decision maker in the advance directive is unavailable, the health care provider looks to a statutorily designated surrogate decision maker, § 5-605 of the Health-General Article. Nothing in the HCDA, however, restricts the ability of an individual to appoint a health care agent when, as in the present case, the individual who is to receive health care is apparently capable of making informed decisions on his or her own behalf. 9 ⁴³⁶ Next, we address the Estate’s argument regarding § 19-344(c) of the Health-General Article. The Estate argues that pursuant to this statute, the authority of a nursing home resident’s agent, when signing admission documents on the resident’s behalf, can only extend to control of the resident’s finances.

Again, we disagree. As we have explained previously, the Legislature enacted § 19-344(c) to limit the personal liability that a nursing home resident’s agent may incur when admitting the resident to a nursing home. Walton v. Mariner Health, 391 Md. 643, 654 , 894 A.2d 584, 590 (2006). We provided an extensive discussion of § 19-344(c) in Walton , explaining the ways in which that statute limits the agent’s potential liability by setting forth the specific requirements for those “who manage[ ], use[ ], or control[ ] the funds or assets that legally may be used to pay the applicant’s or resident’s share of costs or other charges for the facility’s services.” 391 Md. at 664-68 , 894 A.2d at 596 -99 (quoting § 19-344(c)(l) of the Health-General Article). 10 The Legislature’s purpose in setting forth these requirements was to “assure that [health care contracts] conform to existing law and are clear and understandable” because “the circumstances surrounding admission to a nursing home are highly stressful for applicant ]s and their families.” Walton, 391 Md. at 665 , 894 A.2d at 597 (quoting Bill Summary, H.B. 683 at 1-2 (1988)).

As our discussion in Walton points out, the purpose of § 19-344(c) was to limit the potential personal financial liability that ⁴³⁷ agents for applicants may incur during the stressful nursing home admission process. The purpose and text of § 19-344(c) demonstrate that it is inapplicable to the present case. Section 19—344(c) was intended to limit the financial liabilities that the agent of a nursing home applicant or resident may be required to assume in regard to the applicant or resident’s stay in the nursing home. It was not intended to limit the ability of an individual to authorize someone else to act on his or her behalf in other ways, nor is there anything in the statute that would have that effect.

Of specific relevance to the present case, nothing in § 19-344(c) addresses arbitration agreements or limits the authority of a nursing home resident’s agent in regard to such agreements. We therefore conclude that § 19-344(c), like the HCDA, did not preclude Dickerson from signing an arbitration agreement on Bradley’s behalf. Other Jurisdictions We now turn to the Estate’s contention that we should follow other jurisdictions that have established procedures, outside of general agency principles, that an individual must follow when conferring on another person the authority to make health care decisions on the individual’s behalf. The Estate makes two arguments in support of this contention.

First, the Estate contends that the statutes of other states “[tjypically ... require that the [nursing home] resident be certified, in writing as ‘incapable of making an informed decision about treatment’ by the attending physician.” Second, the Estate argues that other state courts have held that, “absent a written advance directive, properly applied statutory procedures for appointing a decisionmaker, or some other clear signal from the resident that the family member had the authority to act on his or her behalf, arbitration agreements signed by a family member are not binding on the resident.” To the extent that the Estate relies on those authorities to argue that we should look beyond general agency principles to make our determination in this case, we disagree. We do agree, however, with those courts that have applied general ⁴³⁸ agency principles in cases involving nursing home arbitration agreements. First, we consider the Estate’s arguments regarding statutes from other states and opinions applying those statutes. The statutes of other states reflect determinations made by those states’ legislatures and are not, of course, binding on this Court.

We need not consider the statutes that the Estate has cited for another reason as well: like the HCDA, the other statutes specifically apply to health care decisions. See Fla. Stat. Ann. § 765.204 (West 2005) (dealing with “health care decisions”); Miss.Code Ann. § 41-41-205 (2009) (same); Tenn. Code Ann. § 68 -ll-1803(d) (2006) (same). 11 As we explain extensively in this opinion, the decision to sign the arbitration agreement in this case was not a “health care decision.” As a result, neither those statutes, nor cases applying those statutes, will influence our decision in this case.

Second, we consider the Estate’s argument that other courts have applied something other than general agency principles when determining whether an individual has authority to sign an arbitration agreement on behalf of another person who is seeking health care. The Estate cites a number of Mississippi court decisions for this argument, but we disagree that any of those decisions are applicable to the present case. In each of those decisions, the courts applied the Mississippi health care surrogacy statute, Miss.Code Ann. § 41-41-211, and determined that its requirements had not been satisfied. Compere’s Nursing Home, Inc. v. Estate of Farish, 982 So.2d 382, 384 (Miss.2008) (finding that the requirements of Miss.Code Ann. § 41-41-211 were not satisfied); Miss.

Care Ctr. of Greenville, LLC v. Hinyub, 975 So.2d 211, 217-18 (Miss.2008) (same); Gren. Living Ctr., LLC v. Coleman, 961 So.2d 33, 37 (Miss.2007) (same); Forest Hill Nursing Ctr., Inc. v. McFarlan, 995 So.2d 775, 779-81 (Miss.Ct.App.2008) (same). Similar to the Maryland health care ⁴³⁹ surrogacy statute, see supra note 7, § 41-41-211 allows a person to “make a health-care decision for a patient who is an adult or emancipated minor if the patient has been determined by the primary physician to lack capacity and no agent or guardian has been appointed or the agent or guardian is not reasonably available.” Those cases applying § 41-41-211 are inapplicable here because the present case involves neither a “health-care decision” nor an individual who “lack[ed] capacity.” To the extent that the Estate relies on those decisions for its argument that we should apply something other than general agency principles to the present case, we find those decisions unpersuasive. We do, however, find persuasive those decisions wherein courts have applied general agency principles to determine whether an individual had authority to sign a nursing home arbitration agreement on behalf of another.

For example, the intermediate appellate court in California has applied general agency principles to nursing home arbitration agreements in a number of cases. In Warfield v. Summerville Senior Living, Inc., 158 Cal.App.4th 443, 448-49 , 69 Cal.Rptr.3d 783 (2007), the court concluded that a husband had no authority to sign a nursing home arbitration agreement on behalf of his wife, even though his wife, who suffered from dementia, had failed to object to her husband acting on her behalf. The court found that there had been “absolutely no evidence of the wife’s ‘express or implied consent to have her husband act as her agent.’ ” Id. at 448 , 69 Cal.Rptr.3d 783 (quoting Flores v. Evergreen at San Diego, LLC, 148 Cal.App.4th 581, 589 , 55 Cal.Rptr.3d 823 (2007)). The California court came to a similar conclusion in both Flores, 148 Cal.App.4th at 586-89 , 55 Cal.Rptr.3d 823 (“It was [the nursing home’s] burden to show the validity of the arbitration agreement based on [the resident’s] express or implied consent to have her husband act as her agent.... [T]he record is devoid of any such evidence.”), and Pagarigan v. Libby Care Ctr., Inc., 99 Cal.App.4th 298, 300-03 , 120 Cal.Rptr.2d 892 (2002) (“[Defendants failed to produce any evidence [that the resident’s daughters] had authority to enter into an arbitration contract ⁴⁴⁰ on behalf of their mother .... ”). 12 In each of those cases, the court applied general agency principles to determine whether the signatory to a nursing home arbitration agreement had authority to sign the agreement on behalf of another.

Recently, the Supreme Court of Nebraska also applied general agency principles to a dispute concerning a nursing home arbitration agreement that had been signed by someone other than the nursing home resident. In Koricic v. Beverly Enters.-Neb., Inc., a man signed an arbitration agreement on behalf of his mother when she was admitted to a nursing home. 278 Neb. 713 , 773 N.W.2d 145, 149 (2009). The son had previously signed medical authorizations for his mother, but he had taken action only based on his mother’s directions and had never been granted power of attorney over her affairs. Id. at 148-89.

The court concluded that “an agency relationship existed between [the mother] and [the son]” and that “as [the mother’s] agent, [the mother] authorized [the son] to sign the required admission papers.” Id. at 151. The court also concluded, however, that the son’s “actual authority did not extend to signing an arbitration agreement that would waive [the mother’s] right of access to the courts and to trial by jury,” and that the facts of the case “preclude[d] [the nursing home] from relying on the doctrine of apparent authority.” Id. at 151-52. The Nebraska court was able to resolve that case, which involved facts much like the present case, by applying general agency principles. Other courts have applied general agency principles to cases involving nursing home arbitration agreements.

The intermediate appellate courts in Georgia and Kentucky did so in Ashburn Health Care Ctr., Inc. v. Poole, 286 Ga.App. 24 , 648 S.E.2d 430 (2007), and Mount Holly Nursing Ctr. v. Crowdus, 281 S.W.3d 809 (Ky.Ct.App.2008). In both of those cases, nursing homes argued that an arbitration agreement should bind an individual (or the individual’s estate) when ⁴⁴¹ someone else had signed the arbitration agreement. Poole, 648 S.E.2d at 432-33 (husband signed for wife); Crowdus, 281 S.W.3d at 811-12 (friend signed for friend). Both courts applied general agency principles and found that the signatories lacked authority to bind the other person to the arbitration agreement.

Poole, 648 S.E.2d at 433 (“Simply put, Ash-burn Health Care failed to establish that [the resident’s husband] acted with actual or apparent authority in signing the arbitration agreement, thereby waiving his wife’s litigation rights.”); Crowdus, 281 S.W.3d at 813-15 (finding nothing to support apparent authority). In our opinion, the question posed in the present case, as in those cases from other jurisdictions, can be answered through the application of general agency principles. Accordingly, we conclude that we need only apply the law of agency to determine whether Dickerson had authority to bind Bradley to the arbitration agreement in the present case. Agency We now turn to the application of general agency principles to the present case.

The issue before us is whether the trial court was clearly erroneous when it found that Bradley conferred on Dickerson the authority to sign, on his behalf, the arbitration agreement in this case. The Estate argues that Bradley conferred some authority on Dickerson, but only the authority to receive and endorse Bradley’s Veterans Administration benefit checks and to make some health care decisions on his behalf. Respondent argues that Bradley conferred on Dickerson a more general authority, which included the authority to bind him to the arbitration agreement. The trial court agreed with Respondent, but we disagree.

We instead conclude that Dickerson was Bradley’s agent for purposes of health care and financial decisions, but that the scope of this consensual relationship did not include the authority to bind Bradley to the arbitration agreement in this case. The agency principles at issue in this case are straightforward. In an agency relationship, one person, the principal, can be legally bound by actions taken by another ⁴⁴² person, the agent. An agency relationship is created when the principal confers actual authority on the agent. “Actual ‘authority to do an act can be created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal’s account.’ ” Citizens v. Maryland Indus., 338 Md. 448, 459 , 659 A.2d 313, 318 (1995) (quoting Restatement (Second) of Agency § 26 (1958)).

Actual authority “may be inferred from conduct, including acquiescence.” Anderson v. General Casualty, 402 Md. 236, 247 , 935 A.2d 746, 752 (2007). In the absence of actual authority, a principal can be bound by the acts of a purported agent when that person has apparent authority to act on behalf of the principal. “Apparent authority results from certain acts or manifestations by the alleged principal to a third party leading the third party to believe that an agent had authority to act.” Klein v. Weiss, 284 Md. 36, 61 , 395 A.2d 126, 140 (1978). We have explained, however, that “[i]t is nearly axiomatic that one dealing with an agent must use reasonable diligence and prudence to ascertain whether the agent acts within the scope of his powers.” P. Flanigan & Sons v. Childs, 251 Md. 646, 654 , 248 A.2d 473, 477 (1968). An agent’s power to bind the principal is confined by the authority that the principal has actually granted to the agent.

In regard to either type of authority, “a statement made by an agent will not bind his [or her] principal until an agency is established and then only if the statement is within the scope of the agency.” Id. For this reason, “[a]n agent cannot ... enlarge the actual authority by his [or her] own acts without some measure of assent or acquiescence on the part of his [or her] principal....” Id. (quoting Brager v. Levy, 122 Md. 554, 561 , 90 A. 102, 104 (1914)). Scope of Actual Authority The trial court in the present case concluded that Bradley had conferred on Dickerson actual authority “to alter Mr. Bradley’s legal relations.” The trial court’s factual findings do not, however, support such a broad conclusion.

The ⁴⁴³ trial court based its conclusion on its finding that Dickerson “signed and deposited [Bradley’s] checks, admitted him to various hospitals and nursing homes, and even signed documents allowing for vaccinations and blood transfusions, all for ... Bradley’s benefit.” The trial court also noted that Dickerson “frequently represented that she was Mr. Bradley’s power of attorney and proceeded to make all necessary medical decisions for Mr. Bradley” during the period from 1997 to October 2004. By way of example, the trial court noted a number of times during that time period when Dickerson designated herself as Bradley’s “legal representative” or “power of attorney” 13 when dealing with various health care providers, including Respondent. These facts do suggest that Bradley conferred on Dickerson—directly or through acquiescence—actual authority to make some decisions on his behalf.

Most of the decisions, however, concerned Bradley’s medical treatments or his admission into medical facilities. Other decisions that Dickerson made on Bradley’s behalf concerned Bradley’s finances. Indeed, on repeated occasions, Dickerson held herself out as Bradley’s “financial power of attorney” or stated that she had “authority to manage, use or control [Bradley’s] income, funds and/or assets.” This limited range of acts performed on Bradley’s behalf suggest that, at most, Bradley may have conferred on Dickerson the authority to make health care and financial decisions on his behalf, but no more than that. 14 ⁴⁴⁴ Decision to Sign the Arbitration Agreement vs. Health Care Decision If the Estate is to be bound by the arbitration agreement, the decision to sign the agreement must have been within the scope of the authority that Bradley conferred on Dickerson. The parties have focused on Dickerson’s authority to make health care decisions on Bradley’s behalf, so we shall determine whether the decision to sign the arbitration agreement was within that authority.

We have explained previously that the decision to enter into an arbitration agreement primarily concerns the signatory’s decision to waive his or her right of access to the courts and right to a trial by jury. See Walther v. Sovereign Bank, 386 Md. 412, 443 , 872 A.2d 735, 754 (2005) (explaining that “the ‘loss of the right to a jury trial is a necessary and fairly obvious consequence of an agreement to arbitrate’ ”)(quoting Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302, 307 (4th Cir.2001)). We have further explained that arbitration agreements “are standard not only in insurance contracts but in construction contracts, employment agreements, and a variety of other contracts.” Walther, 386 Md. at 443-44 , 872 A.2d at 754 (quoting Meyer v. State Farm Fire and Cas.

Co., 85 Md.App. 83, 91 , 582 A.2d 275, 278-79 (1990)). Quite obviously, the decision to sign an arbitration agreement is not, in and of itself, a health care decision. 15 It may sometimes be related to a health care decision,