Key Points

  • The Illinois Appellate Court, Second District, reversed a McHenry County order denying an assisted-living facility's section 2-619(a)(9) motion to dismiss a wrongful-death and negligence suit in favor of arbitration.
  • The court held that the arbitration agreement was integral to the establishment contract and a prerequisite to admission, so the resident's son, acting under a health care power of attorney, had authority to bind her to it.
  • Once the facility produced the signed contract and the power-of-attorney form, the burden shifted to the estate, which offered no affidavit or other evidence on the facility's practice or the form's execution date.
  • The court distinguished Parker v. Symphony of Evanston Healthcare, where the agreement said it was not a condition of care and about 85% of residents refused it.
  • Despite a clause delegating unconscionability to the arbitrator, the court held that courts must decide unconscionability and remanded that question for the trial court to decide first.

An Illinois appeals court ruled on Oct. 14 that a son acting under a health care power of attorney had authority to sign his mother into an assisted-living facility's arbitration agreement. The ruling reverses a McHenry County judge who had refused to move the family's wrongful-death suit out of court.

A unanimous three-justice panel of the Illinois Appellate Court's Second District held that the facility's own contract made arbitration a condition of admission. That brought the agreement within the son's power over his mother's health care decisions. Justice Jorgensen wrote the opinion, joined by Justices Hutchinson and Mullen.

The panel stopped short of ordering arbitration outright. It sent the case back to Circuit Judge Kevin G. Costello to decide whether the agreement is unconscionable.

The decision applies a rule the Second District set out in 2015 in Fiala v. Bickford Senior Living Group LLC: an agent holding only a health care power of attorney can bind a resident to arbitration when the arbitration provision is integral to the admission contract and required for admission. The panel held that the contract's terms alone can meet that test. Once a facility produces the signed contract and the power-of-attorney form, the resident's side must answer with affidavits or other evidence.

Samuel McLean signed the establishment contract and its addenda on Sept. 28, 2021, on behalf of his mother, Jane King McLean. The facility was run by Cary Senior Living LLC, which does business as Three Oaks Assisted Living and Memory Care. Jane McLean died on July 26, 2023, and her son, as independent executor of her estate, sued in July 2025, alleging wrongful death and negligence related to her care.

The facility and Lena Eppley, a nurse, moved to dismiss under section 2-619(a)(9) of the Code of Civil Procedure, which allows dismissal when "affirmative matter" defeats a claim, and cited the arbitration agreement. They sought dismissal of the complaint against them or, alternatively, dismissal of four counts and a stay of the wrongful-death proceedings.

McLean argued that his power of attorney let him admit his mother to the facility but not make the legal decision to waive her right to a jury trial. He noted that the defendants had called the agreement "voluntary" and that the date on the power-of-attorney form was illegible. He also argued the case was "nearly identical" to Parker v. Symphony of Evanston Healthcare LLC, a 2023 First District decision that reversed an order compelling arbitration.

Costello denied the motion on April 2, 2026. He said the arbitration addendum was part of the contract but found no language requiring a signature for admission and no evidence of the facility's practice. "But there's no unequivocal evidence that admission—admittance is contingent upon signing it," he said from the bench. The defendants appealed two weeks later.

The appellate court read the contract differently. An arbitration clause appeared in the body of the contract, in the only subsection printed in capital letters, and it incorporated a longer arbitration addendum. The contract's first paragraph defined the establishment contract to include all addenda, and another section allowed residence in exchange for agreeing to "all of the terms and conditions of this Establishment Contract."

An admission-criteria addendum added that "the resident will be admitted upon execution of the Establishment Contract and receipt of all other documents required by the Community." The estate argued the facility had forfeited reliance on that addendum by not raising it in the trial court. The panel disagreed, noting that the whole contract was before Costello and that its own review was de novo.

"The unequivocal evidence was, as described above, the contract itself," Jorgensen wrote. If the facility in practice admitted residents who rejected arbitration, the panel said, the estate bore the burden of proving it. "Here, without any evidence, the pattern and practice of the facility remained pure speculation, not a question of fact," the court held.

That distinguished the case from Parker, the panel said. The agreement in Parker stated that it was not a condition of health care services, and the facility's business manager testified that residents could refuse it and about 85% did. The panel also agreed with Costello that calling the agreement voluntary meant "only that a resident or representative was free to accept or reject the agreement, not that the agreement was not required for admission."

The court also rejected McLean's argument that the illegible date left open whether his power of attorney was in effect when he signed. He did not dispute that he signed the form or that he was his mother's health care agent, and he offered no affidavit about when it was executed. "Presumably, plaintiff knows when the power-of-attorney designation was executed, and he could attest that it was not in effect when he signed the establishment contract and addenda on Jane's behalf (if that was the case)," Jorgensen wrote.

On unconscionability, McLean argued that the agreement exempts from arbitration only the kinds of actions a facility would bring against a resident, contains an effectively one-sided confidentiality clause, and waives punitive damages. The arbitration provision assigns unconscionability questions to the arbitrator. But the panel held that "courts must nevertheless decide the unconscionability question because, if the agreement is unconscionable, the delegation provision within that agreement cannot be enforced."

Costello had called the unconscionability argument a "reach" at the April hearing but never explained why or made a finding. The panel declined to decide the issue first on appeal, writing that "even de novo review presumes there is a decision to review."

Thomas C. Flowers of Quintairos, Prieto, Wood & Boyer, P.A. represented the facility and Eppley. The estate was represented by Michael E. Maher of Salvi & Maher LLP.

The appeals court reversed the order denying the motion to dismiss and returned the case, No. 25-LA-116, to Costello in McHenry County Circuit Court. On remand, Costello must rule on whether the arbitration provision is unconscionable.