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37 Stetson L. Rev. [i] (2007-2008)

handle is hein.journals/stet37 and id is 1 raw text is: STETSON LAW REVIEW VOLUME 37 FALL 2007 NUMBER 1 GUARDIANSHIP INTRODUCTION Rebecca C. Morgan 1 ARTICLES Durable Powers as an Alternative to Guardianship: Lessons We Have Learned Linda S. Whitton 7 Over thirty years of experience with the durable power of attorney has demonstrated both the advantages of durable powers as an alternative to guardianship and the concomitant risks. This Article reflects on the lessons learned from the use of durable powers of attorney and analyzes how planning strategies and legislative reform can enhance the usefulness of durable powers, while at the same time providing a measure of protection for the principal, the agent, and those who deal with the agent. The Author's discussion includes an overview of state legislative trends as well as an analysis of the new Uniform Power of Attorney Act. Is a Guardian the Alter Ego of the Ward? Lawrence A. Frolik 53 This Article observes the various nuances of the relationship between a guardian and a ward. This Article examines the on-going process of determining the scope of a guardian's duties and obligations to a ward and includes a detailed assessment of the substitute-judgment doctrine and the best-interests test, as well as an examination of the interplay between the two. Specifically, the Author contrasts the application of the two doctrines under the respective fields of healthcare decisionmaking and property-management decisionmaking. Through this contrast, the Author observes that the differences within the particular fields are becoming increasingly more narrow as the meaning of substitute judgment evolves through Medicaid-planning cases and as people recognize a need for informed consent in healthcare decisions. Further, this Article contends that the statutorily created fiduciary relationship between a guardian and a ward equates to the engagement of either a privately arranged-for agent under a durable power of attorney or a surrogate-default-healthcare decisionmaker. Consequently, this statutorily created fiduciary relationship goes beyond historic fiduciary standards invoking the reasonable-person approach as the means to a best-interests end when substitute judgment is unattainable. Focusing on the definitional connotations of the responsibilities of a guardian to its ward, as evoked through caselaw, the Author ultimately answers the question posed in the title of this Article in the affirmative. Crossing State Lines: Issues and Solutions in Interstate Guardianships Sally Balch Hurme 87 This Article addresses the many issues facing wards and guardians as our society becomes increasingly mobile, including questions about intrastate venue, domicile, residency, and the conflicts that arise when a guardian makes decisions regarding a ward's personal health or property in states other than the state where the current guardianship exists. The Article presents several hypothetical scenarios and explains how current state laws create little more than a patchwork of rules,

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