Slides Chapter 13 Flashcards
Financial Decisions During Incapacity
A durable power of attorney is a written instrument designating an agent, who is sometimes called an “attorney-in-fact,” to act on behalf of the principal
- Can have limited or broad powers
- Can take effect immediately or on the happening of a future event
- Can be for a limited period or for an indefinite period
- It is “durable” because it lasts during the principal’s incapacity, whereas a traditional power of attorney or agency relationship would not.
Other Power of Attorney Matters
The Uniform Power of Attorney Act is designed to curb abuses of powers of attorney.
Agent’s Duties:
- The Act sets out mandatory obligations for the agent,
such as a duty to act in good faith. UPAA § 201
- The Act also sets out which obligations must be
granted specifically to the agent – “hot powers”
- Hot powers include the power to create, amend,
revoke, or terminate an inter vivos trust; make gifts; or
create or change survivorship rights or beneficiary
designations.
UPAA § 201.
In addition, the UPAA provides broad protection for good faith acceptance or refusal of the instrument.
UPC §5B-114. Agent’s Duties.
(a) Notwithstanding provisions in the power of attorney, an agent that has accepted appointment shall:
(1) act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest;
(2) act in good faith; and
(3) act only within the scope of authority granted in the power of attorney.
(b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:
. . .
Health Care Decisions During Incapacity
- A competent adult can make her own decisions on health care
- Once a person is no longer competent, someone will need to make decisions on that person’s behalf
- Possible options after incapacity:
- Medical professionals will need to make decisions on
the spot. EMTs, nurses and doctors are obligated to
err on the side of life-furthering- Surrogate decisionmaking
- Statutory designee – spouse, domestic partner,
adult children, parents, adult siblings, etc.
- Court order after hearing what individual would
probably have wanted – Consider Quinlan, Cruzan
and Schiavo
- Surrogate decisionmaking
What Can Be Done With Advance Planning?
- Advance Medical Directives (AMDs)
- Advance medical directives are written documents specifying how health care decisions will be made if person is incapacitated
Living will is a directive to a physician, with
instructions about withholding/withdrawing life-
sustaining treatment if terminally ill
Durable power of attorney for health care (DPAHC),
or a health care proxy is a power of attorney
empowering agent to make health care decisions for
principal
Do not resuscitate (DNR) – Get a bracelet - Difference between living will and DPAHC?
Planning for the Care of Children on the Death or Disability of a Parent
Parents planning for their incapacity or death face a series of legal issues concerning their minor child or a child with disabilities as they decide who should have custody of the children and in what manner to manage their own and their children’s finances.
Can provide for guardianship by will or through another statutorily created mechanism, such as standby guardianships.
It may also be possible to delegate more limited authority through educational or medical consent forms.
UPC § 5-202. Parental Appointment of Guardian
(a) A guardian may be appointed by will or other signed writing by a parent for any minor child the parent has or may have in the future. The appointment may specify the desired limitations on the powers to be given to the guardian. The appointing parent may revoke or amend the appointment before confirmation by the court.
