Tag: incapable persons
This week on Hull on Estates, Jonathon Kappy and Stuart Clark discuss the powers entrusted to a Power of Attorney for Property, including whether they may give gifts on behalf of an incapable person.
My wife has a not-so-secret crush on Dr. Sanjay Gupta. In late May, three and a half months prior to 72 yr old John McCain’s shocking selection of his 44 yr old running mate, my wife caught a Dr. Gupta special on CNN called "The First Patient". The program explored in detail, presidential physical and mental health throughout history and the mechanism for substitute decision-making in this regard.
Interesting topic for a blog I thought to myself.
The 25th Amendment of the U.S. Constitution "deals with succession to the Presidency, and establishes procedures both for filling a vacancy in the office of the Vice President as well as responding to Presidential disabilities" (Wikipedia). This Amendment has only been invoked 6 times since its ratification (and two of these occasions actually involved application of a Section of the Amendment that allowed for the appointment of a Vice President during a Vice Presidential vacancy). Incredibly, the following occasions did not result in the invocation of the Amendement:
- Abraham Lincoln lying unconscious for several hours after he was shot until he died;
- James Garfield being incapacitated for eighty days by an assassin’s bullet before dying;
- Woodrow Wilson suffering from a stroke which left him disabled for the last eighteen months of his term; and
- Dwight D. Eisenhower suffering from a heart attack in 1955 and a stroke in 1957.
Even after the assassination attempt by John Hinkley in 1981, then-President Ronald Reagan did not invoke the Amendment (although there was a heated debate about this amongst his aides).
As an aside, my wife tells me that the 25th Amendment has been invoked 3 times in the television series 24 in seasons 2, 4 and 6 (she’s also a bit of a Kiefer fan).
David M. Smith
Not a neurosurgeon. Not Jack Bauer. But secure with myself anyhow.
Persons found to be incapable to manage their property may, nonetheless, be capable to marry (for an in depth discussion of this issue see the 1998 decision of Justice Cullity in Banton v. Banton).
This reality gives rise to all kinds of potential legal dilemmas and truly represents the flashpoint between capacity litigation and family law litigation. If a person incapable of managing their property enters into a marriage, there is a near-certain likelihood that friction will develop between the new spouse and the incapable person’s substitute decision maker.
In large part, the making of financial decisions together is one of the defining characteristics of a marriage. In the situation of a marriage between a capable person and an incapable person with a guardian of property, the substitute decision maker inevitably has a role to play. And what if the new spouse brings a child into the marriage?
Clearly, the family law regime imposes support obligations upon spouses in the event of separation. But how is this obligation reconciled with the obligation of the substitute decision maker to act in the financial best interests of the incapable person?
From the perspective of the legal practitioner, expertise in both family and capacity law is required to seek a creative resolution of any disputes that can develop
Have a great day,