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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