Archive for the 'Powers of Attorney & Health Care Proxies' Category

Disability Planning and The Pope

According the CNA here, on February 25, 2008, Pope Benedict reiterated the Church’s opposition to all forms of euthanasia…

The Pope said that death “concludes the experience of earthly life, but through death there opens for each of us, beyond time, the full and definitive life. … For the community of believers, this encounter between the dying person and the Source of Life and Love represents a gift that has a universal value, that enriches the communion of the faithful”.

Why is this relevant here? Because Ohio’s form powers of attorney for health care and our living wills were created in conjunction with the catholic church and were approved by them as not being violative of the church’s consistent position on the sanctity of human life. I’ve only ever had one client bring it up in a meeting but I was happy to be able to tell them that.

If you don’t know where your state’s forms stand in the eyes of the church, but if your concerned about how your POA holder’s decisions may impact your eternal soul, I think its worth asking someone. We’re covered in Ohio though.

Thanks to Neil A Hendershot for this story on his always informative PA Elder, Estate & Fiduciary Law Blog.

A Good Example Of Fiduciary Duty – And Of Its Breach

Joel A. Schoenmeyer of The Death & Taxes Blog writes here about an oft-repeated issue: How do you define fiduciary duty?

This question is obviously important when a client comes to you alleging that such a duty has been breached.

Wikipedia has 11 relationships in which a fiduciary duty is commonly found but then it follows those up with additional “possibilities”… Its not exactly a science. The duty is one that encompasses principals of equity and fairness and therefore necessarily lives in a gray area.

This case (PDF) though gives us a pretty good example of the duty and of its breach.

Mr. Schoenmeyer summarizes the facts as follows:

The case pitted a decedent’s executor (his brother and business partner) against the decedent’s widow. The case revolved largely around appraisals of the business owned by the decedent and his brother, and the court found that the executor abused his discretion in obtaining low-ball appraisals and hiding more accurate appraisals from the widow.

And it feels that the court decided correctly doesn’t it?

Judge Cardozo is famous for saying:
“A [fiduciary] is held to something stricter than the morals of the marketplace. Not honesty alone, but the punctilio of honor the most sensitive, is the standard for behavior.”

I’m not sure what that means either but like another Judge is famous of saying (about a slightly different topic), you know it when you see it.

UPDATE: The Capacity of The Vegetative State

Yesterday I posted about an October 15, 2007 article from the New Yorker entitled, “Silent Minds”, that addressed what (fMRI) scanning techniques are ostensibly able to tell us about patients in a vegetative state. I spoke at some length with a friend of mine who has a great deal of knowledge in field of cognitive neuroscience and he urged caution.

Specifically, he spoke to a researcher’s ability (or inability) to “know” things with certainty especially where one is studying cognitive processes. With regards to the scanning techniques discussed in the article he said (and I’m paraphrasing) that so much is still unknown about the brain and the very nature of human consciousness, that statements of such certainty like those made in “Silent Minds” simply are not credible.

Though certain areas of the brains of individuals in a vegetative state and otherwise healthy individuals may respond similarly to external stimuli doesn’t mean that the individual in the vegetative state is “thinking”, “comprehending” or “aware of” that stimulus in the same way that a healthy person is. The brain’s hardwired (my word) pathways through which information travels may be fully intact in both the brains of individuals in a vegetative state and the otherwise healthy but the leap from such a physical correlation to a cognitive conclusion is simply not warranted. He also said:

“In the realm of cognitive neuroscience, statements of certainly should be treated with healthy skepticism. In a field in which entire bodies of knowledge are supplanted on a regular basis, accepting as absolute what is believed today can make planning for tomorrow difficult.”

And his quote is particularly apt for us estate planners. This subject is of such great import that sensitive treatment should be the norm and the watchword for all who work in our field.

Thanks again Mr. Hendershot for posting to this article.

The Capacity of The Vegetative State

Neil E. Hendershot of the PA Elder, Estate & Fiduciary Law Blog writes here about an October 15, 2007 New Yorker article entitled, “Silent Minds”, by Jerome Groopman, that addressed comprehensively (Mr. Hendershot’s word) “what scanning techniques are revealing about vegetative patients.”

Claims by by Adrian Owen, a young British neuroscientist, include: some patients in a vegetative state recognize their loved ones’ photographs, comprehend speech, and are able to perform complex mental tasks on command.

Whenever pictures of Bainbridge’s family flashed on the screen, an area of her brain called the fusiform gyrus, which neuroscientists had identified as playing a central role in face recognition, lit up on the scan.***

The patients’ brains were scanned while they listened to a recording of simple sentences interspersed with meaningless “noise sounds.” The scans of some of the patients showed the same response to the sentences as scans of healthy volunteers[.]***

Owen’s final experiment was the most ambitious: a test to determine whether vegetative patients who seemed able to comprehend speech could also perform a complex mental task on command. He decided to ask them to imagine playing tennis.***

The woman had to be able to hear and understand Owen’s instructions, retrieve a memory of tennis—including a conception of forehand and backhand and how the ball and the racquet meet—and focus her attention for at least thirty seconds. To Owen’s astonishment, she passed the test.***

I’m more than skeptical (despite an austere hope) about such claims and the methods used to reach them, so I’ve sent the article to neuroscientist-friend of mine for his opinions… Nonetheless, I thought to post it now for your edification and comments.

…To Be Continued…

“A power of attorney is NOT a license to practice law” – Really!

The best point made in this rather humorous post on the Florida Probate Litigation Blog is that we shouldn’t need an appellate opinion to tell us this but now we’ve got one (in Florida anyways).

Forman v. State Dept. of Children & Families, 2007 WL 601628 (Fla. 4th DCA Feb 28, 2007)

Sara Leftow has filed a brief on behalf of her mother. It appears that Ms. Leftow is acting under a power of attorney to proceed on her mother’s behalf. Ms. Leftow’s brief raises valid points of concern.

However, pleadings filed by a non-lawyer on behalf of another are a nullity. See Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040, 1043 (Fla.2000). The same rule applies to briefs filed in this court. Ms. Leftow’s power of attorney to act on her mother’s behalf authorizes her to act as her mother’s agent, not as her mother’s attorney at law. See Hodges v. Surratt, 366 So.2d 768, 773 (Fla. 4th DCA 1979); Pryor v. King, 485 So.2d 28, 29 (Fla. 1st DCA 1986) (holding that trial court was correct in not allowing appellant’s wife, who was armed with appellant’s power of attorney, to represent him in a quiet title action).

The Florida rule declaring a non-lawyer’s pleadings filed on behalf of another to be a nullity is the product of the state’s policy against the unauthorized practice of law. See Torrey, 769 So.2d at 1043.

Thanks for this Juan – sometimes it is good to review the basics.