Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, March 17, 2014

Article on Personal Delegations


Alexander A. Boni-Saenz (Assistant Professor of Law, Chicago-Kent College of Law) recently published an article entitled, Personal Delegations, 78 Brook. L. Rev. 1231 (2013).  Provided below is the beginning of the introduction to the article: 

Donald and Gloria Luster married on October 5, 1963 and had four children. Donald retired in 2005, and it was about this time when Jeannine Childree, his youngest daughter and a registered nurse, noticed that he was exhibiting signs of dementia. After a number of consultations with doctors, Donald was officially diagnosed with Alzheimer's disease in 2009 due to his memory loss, disorientation, and other cognitive impairments. Based on these medical evaluations, a Connecticut probate court declared Donald incapable of handling his personal or financial affairs and appointed Jeannine and his other daughter, Jennifer Dearborn, as his guardians. Shortly thereafter, Gloria filed for a legal separation from Donald, and in response, the daughters counterclaimed for divorce, suspecting their mother of financial and emotional abuse. Should the guardian-daughters have the authority to sue for divorce on behalf of their father?

In 2000, Joe Thomas Garrett died after a bout with lung cancer. About a week before he died, he signed a durable power of attorney and approved a will. The power of attorney designated Joe's brother, Larry, as attorney-in-fact, and the will poured Joe's assets into a trust bearing Joe's name. Its trustees were Carolynne (Joe's wife), and Larry, and its assets would be distributed at Caroylnne's death, with only two percent going to one of Joe's daughters, Joni Hart. Although Joni had only seen her father a handful of times since 1969, she challenged the will on several grounds, including that Joe lacked the mental capacity to execute it and that it was invalid because it was actually executed by Larry. Assuming Joe lacked decisional capacity, should Larry have the authority to execute a will on his brother's behalf?

These types of questions are more familiar in the health-care context, where the legal system has publicly grappled with the difficulties of delegating the decision to withdraw life-sustaining treatment from individuals such as Karen Ann Quinlan, Nancy Cruzan, and Terri Schiavo. Cases like these illustrate the important question of proxy decision-making on personal matters, yet courts and legislatures are divided on whether and how to delegate personal decisionmaking authority for individuals who suffer from cognitive impairment. Nevertheless, this question's importance in the United States is unlikely to subside anytime soon. Millions of people lack decisional capacity due to illness or accident, and these numbers will only increase with an aging population. Further, the traditional lines of decision-making authority have broken down as family and caregiving structures have changed. Thus, society will face more and more scenarios in which people with cognitive impairments may require support or a proxy in making crucial life decisions. While this reality presents many difficult questions, it also creates an opportunity to rethink and reevaluate how the law treats people with cognitive impairments.


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