Guide · Wills and Estates
Powers of Attorney and Advance Directives: A Comprehensive Guide to Planning for Incapacity
42 U.S.C. § 1396
- Type
- Guide
- Jurisdiction
- National
- Date
- 2024-02-21
- Topic
- Wills and Estates
This guide is a complete working treatment of incapacity planning for individuals, families, and the lawyers who draft and litigate these instruments. Part I covers the durable financial power of attorney: durability and the statutory presumption, springing versus immediate effectiveness, the scope of general authority, and the hot powers that must be expressly granted. Part II covers the agent's fiduciary duties and the drafting devices that create accountability. Part III addresses the acceptance problem that defeats more valid instruments than any drafting defect, and the statutory and practical responses to it. Part IV covers the health care documents, their constitutional foundation from Quinlan through Cruzan and Glucksberg, and the difference between an advance directive and a portable medical order. Part V covers the HIPAA authorization that makes agent decision-making possible. Part VI covers capacity, execution formalities, and the record that defeats a later challenge. Part VII covers substituted judgment and best interests. Parts VIII through XI cover revocation and termination, the default rules that apply where no documents exist, guardianship and its less restrictive alternatives, and the federal programs that do not recognize a power of attorney at all, closing with a complete package list and verification checklist.
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