- Betsy Abramson: guest lecturer. Went to law school with
Erlanger.
- Some people consider it borderline malpractice to draw up
a will for someone without talking to them about
advance directives. Only three people in the class
have healthcare powers of attorney set up. Why?
WI law does not recognize next-of-kin, even though
most people assume that's how it will work (WI is in
the minority here: most states have "family consent"
laws). Parents of minors can make medical decisions
for their children, but otherwise, relatives in WI
have no decision-making powers. Most people think
spouses can, but that's not the case. Law-in-action:
it happens all the time, but according to the law
it's not necessarily supposed to... just basically a
healthcare provider figures "oh, well everyone here
seems to be on the same page, so we'll just do what
they want."
- But basically, people don't know it's needed, they don't
want to think about it, etc. But even in states that
have family consent laws, it's still a good idea,
since people may not know what their relatives want.
- You want to pick someone who can do a good job at being
your advocate, and make sure that person knows what
you want.
- What about financial power of attorney? Even if you don't
have much money, you might need someone who can pay the
bills when you are incapacitated. Or sue someone on
your behalf if you get clobbered. Or take out a loan
to cover your expenses when you're away from work.
Of course if everything is owned in joint tenancy,
that's a different matter.
- Problem 1: what are we concerned about here? Undue influence,
obviously, and whether the selection of attorney-in-fact
is a good choice. These kids don't have jobs... are they
good financial managers? Are they responsible?
So you can explain that she's the client, and they
therefore need to leave. Basically: if you stay here,
there's a greater chance that the documents here will be
questioned later.
You want to generally have a practice of doing things
alone with clients when that would help. That means
you can say "I never do that" when questions are raised.
- Problem 2: first, there's conflict of interest. There's also
some attorney-client privilege information (about the
will). Also standing: does Sam have any rights to this
money (a claim on a future inheritance)? Wis Stats §
243.10(8): the court can sanction Ravi about whether he
is living up to his responsibilities. We also want to
see the actual document, of course: is Sam's use of the
money reasonable compensation? Note on the statutory
form § 254.10, under general authority: there's no
ability for the agent to make gifts. This form has some
real weaknesses, but the legislature has decided that
it's not possible to delegate gift-giving authority on
the statutory form.
- Note Praefke: if gift giving is not EXPLICITLY
delegated, it's not allowed. It's a good practice to
make it even more explicit if you want the agent to be
able to give gifts to him or herself. Note that this is
all done extra-judicially (at set-up time). Gift-giving
is a very dangerous power, in the sense that it is often
a nucleus for litigation, so you want to be very careful
about it.
- Usually, when a person is incapacitated, it's the hospital
that petitions for a guardian. Also, note that there's
a chance that a power of attorney was degignated
improperly, or is contested.
- Problem 3. We'd like to know why he's selling it. We'll
also need to check on the document itself (should be in
our file) to see whether he actually has that power (the
gift power, the power to transfer real estate), and
whether the power is in effect (springing vs. immediate).
Drafting issue: why write a will that says the property
goes to all the kids equally and power of attorney that
allows transfer of real estate? That's not necessarily
a contradictory provision, but it can lead to conflict.
- Immediate vs. springing powers: immediate is maybe superior,
because there's no debate about whether it's in effect.
If you need third parties to rely on it (banks, etc.),
they'll be obligated to question whether, e.g., the person
is really incapacitated. It's harder for them to honor
the power of attorney if they don't know the status of
the person.
- Problem 4. § 155.01(4): a "health care agent" is an
individual. That's something people might dispute. So
we need to warn the lawyer who drafted this mess, so it
doesn't happen again. We want to resolve this without a
lawsuit: they need to resolve this or we petition for
a guardian.
Are these "health care" decisions? Maybe visitors are
a part of the treatment plan, maybe they're theraputic.
Same with the Sunday home visits. The Alzheimer's
ward is clearly a health care decision.
And note that guardians make decisions based on "best
interests," while health care agents use "substituted
judgment."
- Problem 5. When does the WI living will apply? When you're
in a persistent vegetative state, or terminal condition
with death imminent. Read the definitions of these
states: they are important. And it can only address
feeding tubes and life-sustaining procedures. These
are also important definitions.
Note that the living will does not give you the option
of getting life-sustaining procedures when the person
has a terminal condition. It's about being allowed
to die (and some options for how to do so). So if you
want all possible measures, do not fill this document
out. Use power of attorney health care: it's more
flexible, and doesn't have the same limitations.
A WI living will addresses very specific circumstances.
- Problem 6. Probably petition for guardian, maybe under
§ 155.60. And you could maybe remind him of the
criminal statutes (activating her power of attorney means
she could not legally be consenting). And call the cops,
maybe: the nursing home should probably do this, although
you might try and reason with the guy first. And finally,
this is not a healthcare decision.