§ 22  Property Management  [131-138]

 

         A.  Guardianship

 

Much like the way the law of intestacy serves as a foundation for the law of wills, guardianship law undergirds other approaches to property management for incapacitated people.  When someone is a minor or is unable to make various kinds of decisions, the law provides for a “guardian” (though many different titles are used) to make decisions on that person’s behalf.  The disabled person is called a “ward.”  In general, in order for a court to appoint a guardian, the ward must be “incompetent.”

 

1.      Limited Guardianships

 

Traditionally, guardianship was an all-or-nothing proposition almost everywhere: a ward lost virtually all decision making authority.  Many states have reformed their laws to allow “limited” or “partial” guardianships, so that a guardian’s authority is tailored to the needs of the particular ward.  Under this approach, someone might be incompetent for one purpose, but competent for another.

 

2.      Guardian of the Person

 

A guardian of the person has the responsibility to care for the personal needs of the ward.  These guardians handle topics like setting bedtimes and monitoring TV viewing for a minor or supervising travel plans or personal hygiene for an adult.

 

               3.   Guardian of the Property

 

A court may also appoint the same person or another (including an institution) as guardian of the property of the ward.  This person would handle some or all of the ward’s financial affairs.

 

Guardianship over property offers the advantage of court-supervised administration, which can help avoid arbitrary or fraudulent activity, but guardianship presents significant disadvantages.  By labeling the ward as at least partially “incompetent,” guardianship carries a stigma which may hurt the ward’s self-esteem.  Because it is court-supervised, guardianship is also costly, in terms of both time and money.  Also, the list of permissible investments may limit flexibility.  Many people decide to leave guardianship as a last resort.

 

         B.  Durable Powers of Attorney

 

By executing a power of attorney, someone who is competent, but plans for the possibility of incompetence, can often avoid the need for guardianship.  A power of attorney is an arrangement under which one person (the principal) gives another person (the agent) the power to act on behalf of the person executing the power.  Under traditional agency law, the power of the agent ends if the principal becomes incompetent.  See Restatement (Second) of Agency §§ 120 & 122 (1958).  To overcome the restrictions of agency law, all states have authorized some form of a “durable” power of attorney, under which the agent retains authority despite the principal’s incapacity.  See, e.g., UPC §§ 5-501 to 5-505.

 

1.      “Springing” Powers

 

Powers of attorney can either be immediately effective, or can be written to “spring” into action upon the happening of a future event, usually the disability of the principal. 

 

§ 23  Health Care Decisionmaking  [135-138]

 

Clients regularly ask their lawyers to prepare appropriate documents to allow the client some control over end-of-life decisions.  The law has responded in three stages to these needs.

 

The first stage, running roughly in the 1970s, involved the advent of living wills.  See In re Quinlan, 355 A.2d 647 (N.J. 1976).  Created by analogy to wills disposing of property, living wills speak directly for the patient.  They try to anticipate various medical situations which could arise, and say what care the patient would want.  Many states impose various execution requirements similar to those applying to wills of property.

 

The second stage, beginning in the 1980s, brought a surge of interest in durable powers for health care decisions.  See Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261 (1990).  These documents name someone else to act on behalf of the patient.  The grant of authority may be broad, or may be limited to particular situations.Basically, the agent directs the patient’s care as the agent believes the patient would have wanted it.

 

The 1990s brought two significant changes.  First, more states adopted “family consent” statutes, which establish procedures for naming surrogate decisionmakers if the patient has not done so.  These statutes serve as backstops for advance directives.  The second movement is toward merging living wills and durable powers into a single, simplified document.  The Uniform Health-Care Decisions Act (UHCDA) pushes both of these developments forward, while eliminating many of the restrictive rules many states have established for advance directives.  See 9 (Part IB) Unif. Laws Anno. 143 (Supp. 1999).