Will Contracts, Powers of Attorney, and Powers of Appointment

Question 1

What are will contracts?

Answer 1

1. Contracts to make a will
2. Contracts not to revoke a will
3. Contracts to die intestate

Question 2

How do you prove the existence of a will contract?

Answer 2

Establish that:

• The will states the material provisions of the contract
• The terms are contained in another signed writing OR
• Express reference is made in the will to the contract and extrinsic evidence proves the terms.

Question 3

When will a will contract be enforceable?

Answer 3

Only when in writing and signed by the party sought to be charged.

Question 4

What is a joint will?

Answer 4

A will signed by two or more persons that is intended to serve as the will of each.

Question 5

What is a reciprocal will?

Answer 5

Wills with identical or reciprocal provisions.

Question 6

Does the mutual execution of a joint or mutual will create a will contract?

Answer 6

No, at least not one to not revoke the will.

Question 7

What happens if a party to a joint or mutual will with a contract not to revoke tries to do shady shit?

Answer 7

Maybe a constructive trust.

Question 8

What is a power of attorney?

Answer 8

An authorization to act on someone’s behalf in a legal or business matter.

Question 9

What types of power of attorney exist in Pennsylvania?

Answer 9

1. General: can handle all affairs during a period of time when the principal is unable to do so. Very broad powers, and extra powers can be granted.
2. Special: limits the powers to a specific function and duration.
3. Advance health care directives
   
   1. Durable power of attorney for health care decisions
   2. Living wills

Question 10

What’s a durable power of attorney for health care decisions?

Answer 10

A type of power of attorney that appoints an agent to make health care decisions on behalf of the principal if she becomes unconscious, mentally incompetent, or otherwise unable to make decisions.

Question 11

What is a living will?

Answer 11

A power of attorney document that dictates the health care that an individual wants in the event that the individual is unable to make those wants known.

Question 12

When does a living will become effective?

Answer 12

When the patient is incompetent and has an end-state medical condition or is permanently unconscious.

Question 13

When will an advance health care directive be valid?

Answer 13

Only if

1. it’s for an adult of sound mind
2. it’s in writing,
3. it’s signed and dated by the principal or by one on behalf of the principal at the principal’s specific direction, AND EITHER
4. witnessed by at least two individuals OR
5. notarized.

Question 14

When may an advance health care directive be revoked?

Answer 14

For the durable power of attorney for health care decisions, only if

1. the principal is of sound mind and does so
2. by a signed writing OR by personally informing the attending physician, health care provider, or health care agent that the health care power of attorney is revoked.

For a living will, at any time and in any manner by the principal regardless of the principals mental or physical condition. Effective upon communication to the attending physican or other health care provider by the principal or a witness to the revocation.

Question 15

Who is the individual’s health care representative if they do not explicitly name one?

Answer 15

Determined in this order:

1. spouse
2. adult child
3. parent
4. adult sibling
5. adult grandchild
6. close friend

Cannot be an individual’s health care provider or an employee of the provider, UNLESS they are a spouse or close relative.

Question 16

When does a health care power of appointment agent have authority?

Answer 16

It’s durable, so whenever, including when the person is incompetent.

Question 17

What authority does the agent have?

Answer 17

Must make a health care decision in accord with the principal’s instructions or other known wishes, which can be as broad as the principal instructs.

If these instructions do not exist, then the agent must make the decisions in accordance with the agent’s determination of the principal’s best interests.

Question 18

Can an agent withhold nutrition and hydration?

Answer 18

Only if

• the patient specifically states as much in writing,
• the patient clearly expressed such wishes, OR
• it is clear from the patient’s preferences and values that they would not want the artificial nutrition and hydration.

Question 19

What fiduciary duties must the agent follow?

Answer 19

1. Exercise the powers for the benefit of the principal.
2. Separate the assets of the principal from the agent.
3. Exercise reasonable care.
4. Account for all transactions made on behalf of the principal.

Question 20

When can an agent be held liable?

Answer 20

Only for intentional misconduct.

Question 21

How can powers of attorney be revoked?

Answer 21

At any time by the principal, regardless of their physical or mental condition.

Unless stated otherwise by the living will, it is valid until revoked by the principal, notwithstanding the lapse of time since its execution.

Question 22

What is the power of appointment?

Answer 22

Ability of a donee to choose how to distribute the donor’s property.

• General: Donee can exercise the power in favor of anybody he chooses, including himself.
• Special: Donor restricts the class of potential transferees. This can be exclusive (choose from a class of people) or non-exclusive (exercise the power in favor of the entire class).