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2001 The niU form Health-Care Decisions Act and Its Progress in the States David M. English University of Missouri School of Law, [email protected]

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Recommended Citation David M. English, The niU form Health-Care Decisions Act and Its Progress in the States, 15 and Property 19 (2001). Available at: https://scholarship.law.missouri.edu/facpubs/780

This Article is brought to you for free and open access by the Faculty Scholarship at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. The Uniform Health-Care Decisions Act and its Progress in the States

By David M. English

all states statutorily authorize powers There is little uniformity. The result for health care decision making of attorney for health care, and all but is a system of fragmented, incomplete ver the past decade, planning through the making of an ad- Massachusetts, Michigan and New and often inconsistent legislation, both vance directive has become a routine York authorize living wills. among states and within single states. part of personal counseling. Public State legislation has been a mixed In 1993, the Uniform Law Commis- interest in the subject has been fueled blessing. Although intended to facili- sioners approved the Uniform Health- by well-publicized cases such as tate the making of advance directives, Care Decisions Act (UHCDA) in order Cruzan v. Director,Missouri Department many of the statutes may actually in- to bring order to the existing chaos. of Health, 497 U.S. 261 (1990). In re- hibit their use. The execution require- (The text of the UHCDA is available sponse to this interest, most states ments are often detailed. Restrictions at www.nccusl.org.) Unfortunately, authorize their citizens to make at on the types of treatment that may be the Commissioners waited too long least one form of advance directive: withheld or withdrawn are common. to act. By the time the UHCDA was

May/June 2001 approved, nearly all states had passed emancipated minor may give an UHCDA does not address this topic, legislation governing advance direc- "advance health-care directive," which nor is it adequately addressed in any tives. Convincing states to revisit refers to either a "power of attorney of the states that have enacted the existing legislation is not easy. Interest for health care" or "individual instruc- UHCDA. This leaves the decisions declines in expending further political tion." The UHCDA deliberately avoids for friendless patients to be made capital on what may seem to some the term "living will," because the largely in default by health care to be only modest improvements. drafters concluded that the term "indi- providers without any guidance or Consequently, the UHCDA has vidual instruction" is more accurate. If safeguards. A need remains for a pro- achieved only a limited success, an individual fails to execute a power cedure to make routine and critical picking up but one or two enactments of attorney for health care or if the health care decisions for friendless a year. The UHCDA is currently in agent is not available, the UHCDA patients outside of court but with effect in six states: California, Cal. authorizes health care decisions to be appropriate safeguards. Prob. Code §§ 4600-4805; Delaware, made by a "surrogate" to be selected Del. Code Ann. tit. 16, §§ 2501-2517; from a priority list. Eliminating Restrictions Hawaii, Haw. Rev. Stat. §§ 327E-1 to All six states that have enacted 327E-16; Maine, Me. Rev. Stat. Ann. the UHCDA include its provisions Most power of attorney for health tit. 18-A, §§ 5-801 to 5-817; Mississippi, on individual instructions and powers care statutes allow a principal to dele- Miss. Code Ann. §§ 41-41-201 to 41-41- of attorney, albeit with numerous gate to an agent the authority to make 229; and New Mexico, N.M. Stat. Ann. (mostly small) modifications. All of all health care decisions. The living §§ 24-7A-1 to 24-7A-18. these states, except California, contain will statutes are replete with restric- The overall objective of the comprehensive provisions on decision tions. The complex definitions of the UHCDA is to encourage the making making by surrogates. categories of patients for whom life- and enforcement of advance health sustaining treatment may be withheld care directives and to provide a Topics Not Addressed or withdrawn and the prohibitions means for making health care deci- against the withdrawing or withhold- sions for those who have failed to Although comprehensive, the ing of certain forms of treatment plan. The UHCDA accomplishes UHCDA does not address all conceiv- have rendered many of these statutes these objectives by able issues. The UHCDA is limited to virtual nullities. e making the UHCDA comprehen- health care decision making for adults The drafters of the UHCDA con- sive, combining in one place topics and emancipated minors. The Com- cluded that the attempts to prescribe that are related but that have often missioners concluded that covering statutorily the circumstances when life- been addressed by separate statutes; the full range of health care decision sustaining treatment may be withheld • removing the hurdles to the making for unemancipated minors, or withdrawn are difficult to apply making of advance directives and the including the effect of differing in a clinical setting and provide an limitations on the topics an advance parental and custodial arrangements appearance of precision where none directive can address; and levels of maturity would have is possible. Under the UHCDA, there e establishing a system for deci- made the Act unwieldy are no specific restrictions. An individ- sion making by surrogates for those A topic generating enormous ual instruction and the authority who have failed to plan; and publicity in recent years is physician- granted to an agent may extend to - providing a mechanism for the assisted suicide. The UHCDA does any "health-care decision," a term that enforcement of advance directives. not expressly prohibit physician- is expansively defined to include such assisted suicide, but it does recognize matters as approval or disapproval of Comprehensive Scope that other state statutes may prohibit orders not to resuscitate and directions the practice. The consensus to date is to provide, withhold or withdraw Most states recognize living wills, that physician-assisted suicide, if it artificial nutrition and hydration and powers of attorney for health care is to be allowed at all, requires the other forms of health care. and a decision making role for the enactment of special legislation, such The enacting states are mostly families of those who have failed to as that in effect in Oregon. Or. Rev. faithful to the text of the UHCDA on make advance directives. But the Stat. §§ 127.800 to 127.995. this point. Only Delaware restricts statutes that address these subjects A topic not generating as much the topics that can be addressed in often create inconsistencies within a discussion but ultimately far more an advance health care directive, pro- state's own law. The UHCDA avoids important is the problem of the viding that an advance health care these inconsistencies by covering "friendless patient"-the individual directive can be applied to withdraw all of these topics within one statute. who has no family or friends avail- life-sustaining procedures only for Under the UHCDA, any adult or able to act on his or her behalf. The patients who are terminally ill or

Probate & Property permanently unconscious. Both Dela- state legislatures in their consideration directive. Through continued use of ware and Maine allow a surrogate to of the UHCDA. Nevertheless, the the form, it is hoped that health care withdraw or withhold life-sustaining UHCDA's provisions on oral instruc- providers will become more familiar treatment, but only from patients tions have been generally accepted, with its provisions and make more who are terminally ill or permanently although both Maine and New Mexico informed decisions. unconscious. Hawaii prohibits a have imposed some safeguards. Nearly all living will statutes con- surrogate from withdrawing or Maine provides that the instruction tain statutory forms, as do most of withholding artificial nutrition and is valid only if given to the health care the power of attorney for health care hydration without certification by provider or person eligible to act as enactments. Signing separate power two physicians that treatment is surrogate; New Mexico validates of attorney and living will forms merely prolonging the act of dying an instruction only if given to the can lead to complications: execution and that the patient is unlikely to health care provider. Only Delaware requirements may differ, and forms have any neurological response. omits the provision recognizing can be inconsistent. Issues can arise oral instructions. as to how to coordinate the two docu- Execution Requirements The effort to relax execution re- ments. Did the creator intend the agent quirements for the power of attorney to be bound by the wishes expressed The execution requirements for for health care has been less successful. in the living will, or did the creator an advance directive in many states are both cumbersome and confusing. Most living will statutes require two witnesses. Some require only the prin- cipal's signature. Other statutes follow 'The drafters of the UHCDA concluded the living will model and require that the cumbersome execution two witnesses. Some statutes require the power to be either witnessed requirements found in many state or acknowledged at the principal's option; others require it to be both statutes have done little to deter witnessed and acknowledged. Most or overreaching. living will and power of attorney for health care statutes also impose witness qualification rules, some of which are quite lengthy The drafters of the UHCDA con- Only New Mexico has followed the instead intend that the living will cluded that the cumbersome execution UHCDA without change. The other apply only if the agent is unavailable? requirements found in many state states have generally retained the exe- These problems can be avoided or at statutes have done little to deter cution requirements under prior law. least significantly reduced if an indi- fraud or overreaching. Instead, their But even here surface appearances do vidual signs one combined advanced primary effect is to deter the making not reflect the full reality. Most of the directive form that addresses in one of advance directives and to invalidate states have enacted without change place both the designation of an agent defectively executed directives that the UHCDA provision on oral designa- and the giving of instructions. otherwise would be reliable indica- tions of surrogates, which in practical The UHCDA's combined advance tors of the individual's intent. The effect is the same as allowing for the directives form consists of four parts: UHCDA facilitates the making of oral appointments of agents. appointment of agent, instructions, advance directives by keeping exe- organ and tissue donation and desig- cution requirements to an absolute The Statutory Form nation of primary physician. The minimum. A power of attorney power of attorney appears first on for health care must be written and Statutory forms provide a number the form to ensure that it comes to signed, but it need not be either of benefits. Because the form is stan- the attention of the casual reader, since witnessed or acknowledged. An indi- dard and widely available, individuals the appointment of an agent is usually vidual instruction may be either who would otherwise be reluctant to more helpful in the making of health written or oral. pay to have a form prepared are more care decisions than is the giving of This attempt to eliminate execution likely to execute an advance directive. specific instructions. Because the vari- requirements has been only a partial The availability of an officially sanc- ety of potential treatment decisions success. Concerns about possible fraud tioned form will reduce the reluctance is virtually unlimited, the instructions and motivated many of health care providers to honor a part of the form addresses only those

May/June 2001 categories of care for which an in- Drafting forms is an art, not a sci- for the family. Most of these statutes dividual is most likely to have special ence, and there is always room for create a priority list based on closeness wishes. This section includes optional improvement. In many small ways, of relationship to the patient. Some pri- provisions relating to withdrawing New Mexico's form is more "user ority lists are rather rigid, but others or withholding treatment, supplying friendly" than the UHCDA form. allow the decision to be made by some- artificial nutrition and hydration and The other states have largely enacted one lower on the list who might be providing pain relief. An individual the form without significant change, better qualified. The approach of the may merely designate an agent and except for conforming the form to UHCDA is not necessarily the last leave the instructions part of the form match other modifications that they word. Undoubtedly, new and perhaps blank. This allows the agent maximum have made to the UHCDA, such as better methods of making health care flexibility to respond to the principal's the addition of execution requirements. decisions for those who have failed to current health care needs. Perhaps from a concern that providing plan will arise. The UHCDA empowers Adopting language suggested for organ and tissue donation might a surrogate to make a health care deci- by the Uniform Anatomical Gift Act, deter some individuals from making sion for an adult or emancipated minor the form includes space for the indi- advance directives, both Mississippi for whom no agent or guardian has vidual to express an intent to make an and New Mexico dropped the subject been appointed or whose agent or organ or tissue donation. The drafting from their forms, although New guardian is not reasonably available. committee assumed that a donation Mexico later added it back. A surrogate may act even if the patient has provided written instructions. Instructions rarely address all health care decisions that need to be made. Even if they do, interpretation is "Despite the wider and highly recom- often necessary. The UHCDA's initial priority list mended use of powers of attorney for is rather standard, beginning with the health care, families continue to play an spouse, followed in order by an adult child, a parent and an adult sibling. important role in making health care Those lower on the list are eligible to act when a predecessor is unwilling decisions for incapacitated relatives. to decide or is unavailable. Unlike the statutes in most states, the UHCDA then creates a bottom level priority for the "close friend," although distant designation on an advance health care Surrogates relatives and domestic partners can directive is more likely to come to light also fit within this category. The than an organ donor card. Because Despite the wider and highly rec- UHCDA defines a "close friend" as health care providers usually refuse ommended use of powers of attorney a person who has exhibited special to honor a donation document un- for health care, families continue care and concern for the patient and less the donor's family concurs, practi- to play an important role in making who is familiar with the patient's tioners should always encourage health care decisions for incapacitated personal values. donors to discuss their wishes with relatives. Very few individuals make The states enacting the UHCDA their families. advance directives. For the majority have not hesitated to modify the Finally, the form provides space who never make a directive, recourse priority list. Delaware expressly dis- for an individual to designate a to the family may be the only realistic qualifies the spouse if there has been "primary" physician. The UHCDA method for assuring continuity in a complaint of domestic abuse. Hawaii specifically avoids use of the term decision making. The appointment of rejects the priority list altogether, opt- "attending physician," which could a guardian is expensive, cumbersome ing instead to select the surrogate refer to the physician currently pro- and often ill-suited to the making of based on the consensus of the inter- viding treatment to the individual health care decisions, particularly ested persons, who are defined to and not the physician whom the when time may be of the essence. include all of the persons who might individual would select. Among Health care providers' reliance on have been eligible to act as surrogate the functions of a patient's primary the family is often based on little more under the UHCDA as originally physician is the determination of than medical custom, but about two- written. Maine and New Mexico the patient's capacity to make health thirds of the states have legislation in add various other relatives to the care decisions. force validating a decision making role list. More significantly, New Mexico

Probate & Property also creates an express priority for a that an oral designation of a surrogate The provisions of the UHCDA domestic partner. continues only during the course of on enforcement of advance directives treatment or illness or stay in the have been enacted without significant Orally Designated Surrogates health care institution. changes. The most important revisions concern the obligation to provide The UHCDA does not specifically Enforcement continuing care upon declination of use the term "domestic partner," but a health care decision for reasons of an attempt to address issues arising Effectuating a patient's right to conscience or on the basis that the care from such relationships led to perhaps self-determination requires assurance would be medically ineffective. Recog- the most innovative and successful that the patient's views and the deci- nizing that no other facility may be feature of the Uniform Act. Instead of sions of those acting for the patient willing to accept the patient, California granting domestic partners a specific will be respected and enforced. has specified that the obligation of the priority, the Commissioners elected to The UHCDA contains a series of pro- declining facility to provide continuing make it easier for any patient to desig- visions designed to enhance this care does not mean unlimited compli- nate a nonrelative to make health care possibility. The UHCDA requires ance with the patient request but only decisions. The "orally designated providers to honor a patient's instruc- that the facility continue pain relief and surrogate" appears as the type of deci- tions about health care and to comply other palliative care. Maine provides sion maker first on the priority list of with a reasonable interpretation of that the obligation to provide continu- surrogates. The orally designated sur- those instructions and with a health ing care terminates on final order of rogate does not have quite the status care decision made by the patient's court regarding the disputed health of an agent appointed under a written agent, guardian or surrogate. A health care decision. California, Delaware power of attorney; hence the use of care provider may decline to act only and New Mexico fix a gap in the im- the different term. Although the Com- for "reasons of conscience" or if the munities section of the UHCDA by missioners by the use of this term requested treatment would be "med- providing protection from liability indicated a preference for written ically ineffective." In either case, a to a provider or institution declining to powers of attorney, they also recog- health care provider or institution provide care as authorized by the Act. nized that many individuals simply must assist in the patient's transfer will fail to prepare the necessary to another health care provider or Conclusion documents. Furthermore, the Com- facility where compliance will be missioners recognized that oral assured, if one can be found. The Uniform Health-Care Deci- designations occur with some fre- The UHCDA provides certain sions Act represents a major advance quency in practice. The ease with immunities to induce compliance. over the existing law in most states. It which oral designations can be made An individual's agent or surrogate is is comprehensive; it facilitates the giv- creates a significant risk of miscom- typically an uncompensated volunteer ing of advance health care directives; munication, however. To provide and therefore is not held to the onerous it addresses decision making for those some reliability of proof, an individual standards of general law. An who have failed to plan; and it elimi- may orally designate a surrogate only individual acting as a patient's agent nates many restrictions. The six en- by personally informing the individ- or surrogate is not subject to civil or actments to date, even with all of the ual's supervising health care provider. criminal liability for health care deci- local modifications, remain relatively In turn, the UHCDA obligates the sions made in good faith. To encourage faithful to the Act's fundamental health care provider to record the health care providers to comply, the premises. In the politically charged designation in the individual's health UHCDA generally exempts from lia- arena of health care decision making care record. bility health care providers acting in at the end of life, achieving uniformity All of the states that have enacted good faith and in accordance with in all of the details is not possible. the UHCDA included the oral surro- generally accepted health care stan- Achieving agreement on fundamental gacy provision. It is the most success- dards. The UHCDA protects providers goals is more than sufficient. ful of the UHCDA's innovations. Only who (1) comply with a health care Delaware has made the making of an decision of a person apparently having appointment more difficult by requir- authority to make a decision for a David M. English, who was the ing that the patient's oral designation patient, (2) decline to comply with the Reporter for the Uniform Health-Care be communicated not only to the decision of a person based on a belief Decisions Act, is the WE Fratcher supervising health care provider but that the person lacks authority, and Missouri Endowed Professor of also to a witness who is someone (3) assume that the directive was valid Law at the University of Missouri- other than the designated surrogate. when made and has not been revoked Columbia and a member of the California added language to clarify or terminated. Section's Council.

May/June 2001 National Health Care Decisions Week 2001

Based on the success of National Health Care Decisions Week 2000, HRSA has extended grant support for National Health Care Decisions Week 2001 (October 21-27, 2001). Sec- tion members are encouraged to contact their state and local bar associations to participate in this year's initiative. For more information, contact Maria Tabor, Section Assistant Staff Director, (312) 988-5590, mtabor@staff. abanet.org.

Probate & Property Keeping Current-Probate offers a look at selected the applicable statute providing that a disclaimant is recent cases, rulings and regulations, literature and treated as predeceasing the decedent, the son's interest legislation. The editors of Probate& Property welcome passed to his minor children. In Estate of Fleenor, 17 P. 3d suggestions and contributions from readers. 520 (Or. Ct. App. 2000), the court held that the statutory provision making disclaimers irrevocable prevented the son's attempt to undo his disclaimer and that the disclaimer could not be reformed into a conveyance to his brother.

* ADOPTION: Trust beneficiary has standing to chal- 9 FAMILY LIMITED PARTNERSHIPS: Transfer of assets lenge adult adoption. An uncle adopted his life partner. to an FLP did not constitute a taxable gift. The court in By the adoption, the adoptee became the remainder Estate of Strangi v. Commissioner, 115 T.C. No. 35 (2000), beneficiary of a trust that would otherwise have passed held that there was no gift when the FLP was formed to the uncle's niece when the uncle died. In Rickard v. despite a valuation discount causing the partner to McKesson, 774 So.2d 838 (Fla. Dist. Ct. App. 2000), the receive an interest that was worth less than the value court held that the niece would have had the right to of the property transferred. The court allowed both an challenge the adoption had she received notice. The lack 8% minority discount and a 25% marketability discount. of notice amounted to fraud on the court. Accordingly, In the similar case of Knight v. Commissioner, 115 T.C. her action was not barred by the statute of limitations No. 36 (2000), a combined 15% discount was allowed. on reopening judgments. o FIDUCIARY RESPONSIBILITY: Trustee not liable for * BENEFICIARY: Statute voiding gift to beneficiary excessive distributions made at beneficiaries request. who transcribes will narrowly construed. California The life beneficiary and the sole surviving contingent law invalidates any donative transfer to a "person who beneficiary demanded and received distributions from has a fiduciary relationship to the transferor" and "who two trusts created by the life beneficiary far in excess of transcribes [the donative instrument] or causes it to be those allowed by the terms of the trusts. After the life transcribed." Cal. Prob. Code § 21350. In Estate of Swet- beneficiary's death, the contingent beneficiary sued the mann, 102 Cal. Rptr. 2d 457 (Cal. Ct. App. 2000), the court trustee for breach of trust. In Buchbinder v. Bank of held that the statute applies only to a beneficiary who America, 30 S.W.3d 707 (Ark. 2000), the court held that causes the instrument to be written out in final form and the remaining beneficiary had no cause of action, hav- is thus in a position to subvert the donor's intent. ing procured the very distributions about which the beneficiary was complaining. * CLASS GIFT: Gift over on death to children prevents vesting. A decedent left his wife a life estate in the residue * FORMALITIES: not available to of his estate, the remainder to his brothers and sisters and, remedy faulty will execution. A testatrix acknowledged if any of his siblings predeceased the life tenant, that sib- her will but neglected to sign it. The witnesses and the ling's share would pass to the sibling's children. A brother notary signed the instrument. Without the testatrix's sig- predeceased the life tenant but was not survived by chil- nature, the will cannot be probated, nor can a construc- dren. The court in Martino v. Martino, 35 SW. 3d 252 (Tex. tive trust be imposed in favor of the beneficiaries because App. 2000), held that the language creating a gift over that would validate an invalid will. Dalk v. Allen, 774 So. prevented absolute vesting of the remainder and thus the 2d 787 (Fla. Dist. Ct. App. 2000). brother lost his share of the remainder. * GIFT TAX: Speculative liabilities do not reduce value * DISCLAIMERS: Disclaimer may not be rescinded or of gift. The court in FrankArmstrong, Jr., Trust v. United reformed. A son disclaimed his interest in his mother's States, No. CI.A.5:99CV00006, 2000 WL 1534714 (WD. Va. estate, assuming it would pass to his brother, the other 2000), held that the value of a gift is not reduced by the residuary legatee named in the will. Instead, by virtue of potential estate tax liability the donee could incur if the

May/June 2001 donor died within three years of the gift or by the donee's document. The decedent's nieces and nephews sued agreement to pay additional tax on any increases in his lawyer alleging that the lawyer was negligent in not value determined by the IRS. These amounts were preparing a new will according to their uncle's instruc- too speculative at the time of the transfer to permit a tions, under which they would have been beneficiaries. valuation discount. The court in Beauchamp v. Kemmeter, No. 00-0470, 2000 WL 1863576 (Wisc. Ct. App. 2000), held that a lawyer has * INTERFERENCE WITH EXPECTANCY: of inter- no duty to individuals who claim to be intended benefi- ference with expectancy recognized. Over two strong ciaries based only on extrinsic . dissents, the Alabama Supreme Court recognized a right to recover for tortious interference with an ex- 9 PROFESSIONAL RESPONSIBILITY: Lawyers for ad- pectancy The plaintiffs alleged that the decedent's ministrator owe no duty to heir. The father of an intestate husband prevented her from executing her will. Ex decedent alleged that he did not receive his share of the parte Batchelor, No. 1991507, 2001 WL 10891 (Ala. 2001). estate and sued the lawyers who represented the admin- istrator. The court dismissed the complaint, holding that o JURISDICTION: Federal court has jurisdiction regard- lawyers for a personal representative owe their duties ing certain probate-related matters. Federal courts lack only to the client and not to the heirs or beneficiaries of jurisdiction to probate wills and administer estates. In the estate. Jackson v. Furey,No. 98014796S, 2000 WL Dulce v. Dulce, 233 F.3d 143 (2d Cir. 2000), however, the 1918052 (Conn. Super. Ct. 2000). court held that a federal district court has jurisdiction to order the executor to file a will for probate and to deter- * SHAM TRUSTS: Court disregards sham trusts for tax mine that a creditor is entitled to share in the estate. purposes. Settlors transferred the vast majority of their assets and right to income to a series of trusts. The sett- * LAPSE: Reformation to conform to the 's lors were the sole trustees and sole beneficiaries of these alleged intent denied. A man's will left his residuary trusts. The trusts then paid their basic living expenses, estate to his wife but did not provide for a contingent gift such as housing and health care. The court in Muhich v. should she predecease him, which she did. Her sisters Commissioner, 238 F. 3d 860 (7th Cir. 2001), disregarded petitioned for reformation of the will to conform to the these trusts for income tax purposes. husband's alleged intent to leave his property to them should his wife die first. The court in Flanneryv. McNa- mara, 738 N.E.2d 739 (Mass. 2000), held that a will cannot be reformed under such circumstances, rejecting the contrary statement in Restatement (Third) of Property (Donative Transfers) § 12.1. e CHARITABLE REMAINDER UNITRUSTS: Settlors per- mitted to withdraw prohibited contribution. The transac- * LIFE INSURANCE: Constitutionality of statute revok- tion did not disqualify the CRUT despite the impermissible ing designation of ex-spouse as beneficiary. In Means contribution. The settlors did, however, pay the tax on the v. Scharbach, 12 R3d 1048 (Wash. Ct. App. 2000), a Wash- sale and did not take a deduction for the contribution. ington court upheld the constitutionality of the state's PLR 200052026. revocation on divorce statute as applied to insurance beneficiary designations in existence on the date of o ELECTING SMALL BUSINESS TRUSTS: Proposed enactment. The Colorado courts are divided on this and temporary regulations issued regarding grantor issue. In re Estate of Becker, No. 99CA2251, 2000 WL trusts selecting ESBT status under S corporation rules. 1785278 (Colo. Ct. App. 2000) (constitutional) and In re T.D. 8915. DeWitt, No. 99CA1349, 2000 WL 1785182 (Colo. Ct. App. 2000) (unconstitutional). - GENERATION-SKIPPING TRANSFER TAX: Final regulations provide guidance on the type of trust - POWER OF ATTORNEY: Gifts by agent not recog- modifications that will not affect the exempt status nized. In Christensen v. Commissioner,T.C. Memo. of a trust. T.D. 8912. 2000-368, the court did not recognize gifts made under a durable power of attorney because the power did not * QUALIFIED REVOCABLE TRUSTS: Proposed regula- expressly authorize the gifts. Accordingly, the gifts were tions provide guidance for making a QRT election included in the donor' s gross estate. under Code § 645, the tax treatment of the trust and estate while the election is in effect and rules regard- o PROFESSIONAL RESPONSIBILITY: Lawyer not liable ing the termination of the election. Treas. Reg. to individuals not named in any estate planning § 10.6542-98.

Probate & Property * VULTURE OR GHOUL TRUSTS: Final regulations * Power of attorney. Robert McLeod explores agents' address the abusive use of charitable remainder and fiduciary duties in What Are the Limitations to an charitable lead trusts. To obtain a large charitable de- Attorney-In-Fact'sPower to Gift and to Change a Dis- duction, a settlor could create a trust in which a charity positive (Estate)Plan?, 27 Wm. Mitchell L. Rev. 1143 (2000). receives payments until the death of a young person. The young person, however, would be terminally ill so that the o Rule Against Perpetuities. Keith L. Butler argues that charity would actually receive far less than the valuation even reform does not help an otherwise extant legal rule rules anticipate. The new regulations restrict measuring in Long Live the Dead Hand: A Case for Repeal of the lives to prevent this and related abuses. T.D. 8926 (charita- Rule Against Perpetuitiesin Washington, 75 Wash. L. Rev. ble remainder trusts); T.D. 8923 (charitable lead trusts). 1237 (2000). For a historical overview and a discussion of the recent changes, read John G. Shively's The Death of the Life in Being-The Required FederalResponse to State Abolition of The Rule Against Perpetuities,78 Wash. U. L. Q. 371 (2000).

* Advance directives. Karen L. Schultz & Timothy D. o Spendthrift trusts. Karen E. Boxx discusses whether Schultz review the use of the four types of advance direc- spendthrift trusts have a place in the system tives authorized by Texas law in Advance Directives: A in Gray's Ghost-A Conversation About the Onshore Primer,63 Tex. B.J. 1034 (2000). Trust, 85 Iowa L. Rev. 1195 (2000).

* Disclaimers. Jeff Y Bae & David M. Maloney discuss o Will contests. Dennis W Collins discusses the warning requirements for disclaiming property interests in joint signs and the lawyer's role in proper planning in Avoiding tenancies in Disclaimers: The Last Line of Defense When a -The Impossible Dream?, 2000 Creighton L. Wrestling with Estate PlanningProblems, Tr. & Est. 40 Rev. 7. (Nov. 2000).

* Estate tax. Is TreasuryRegulation Sec. 25.2702-3(e), Example 5 Valid?, Tr. & Est. 58 (Nov. 2000), offers Christo- pher P. Bray's analysis of one of the federal estate and gift tax system's most challenging provisions. * Hawaii enacts Uniform Disclaimers of Property Inter- ests Act. 2000 Haw. Sess. 43. 9 Family businesses. In Are Estate Taxes Sounding the Death-Knell for High-Value Family-Owned Businesses? * Kansas provides a statutory order of individuals with An Examination of the Jack Kent Cooke Estate and the authority to determine final disposition of a decedent's Forced Sale of the Washington Redskins Football,2000 remains. 2000 Kan. Sess. Laws Ch. 122. Colum. Bus. L. Rev. 303, David S. Gasperow discusses avoiding estate taxes. * Massachusetts protects beneficiaries of structured settlements. 2000 Mass. Legis. Serv. Ch. 427. a Family limited partnerships. Marva J. Rowan explores The Availabilityof Lack of Liquidity Discountsfor Transfers * Ohio requires certain statements in living wills and of Family Limited PartnershipInterests: Kerr v. Commis- durable powers of attorney for health care to be in con- sioner, 53 Tax Law. 959 (2000). spicuous type or capital letters. 2000 Ohio Laws 270.

* . John C. Novograd et al. offer tips for the practitioner in Private Settlements of FiduciaryAccounts: A Prescriptionfor Achieving Finality,Tr. & Est. 28 (Nov. 2000). o Inter vivos trusts. Dennis M. Patrick explores the recent hype and applauds its demise in Living Trusts: Snake Oil or Better Than Sliced Bread?, 27 Win. Mitchell L. Rev. 1083 (2000). Keeping Current-ProbateEditor: Gerry W. Beyer, St. Mary's University School of Law, One Camino Santa o Life insurance. J. Richard Duke explains Planningfor Maria, San Antonio, TX 78228-8603, gwb@alvin. High Net-Worth U.S. PersonsThrough the Use of Offshore stmarytx. edu. Contributors include: Dave L. Cornfeld, Life Insurance, 1 Richmond J. Global L. Bus. 43 (2000). William P. LaPiana, Theresa A. Sutton and Theresa York.

May/June 2001