Friday, March 21, 2014
Ralph C. Brashier (Cecil C. Humphreys Professor of Law, University of Memphis) recently published an article entitled, The Ghostwritten Will, 93 B.U. L. Rev. 1803 (2013). Provided below is the introduction to the article:
Although the average lifespan of Americans is significantly longer than it was just three decades ago, science and medicine have yet to moderate the incapacity brought on by various forms of dementia - including Alzheimer's disease - that often befall the elderly. In the absence of scientific and medical breakthroughs, it appears inevitable that an increasing number of us will live our final days in limbo: a place where time alters the world around us while we are, to varying degrees, unaware of those changes and unable to account for them.
Among the most significant changes that may occur while an individual is incapacitated are those relating to her family structure and wealth. Such changes can fundamentally alter the distribution of her estate, yet in her incapacity she cannot rewrite her estate plan. Moreover, American law has never permitted an individual to delegate directly her will-making power to another.
Drawing on the common law of wills as well as modern statutory developments in both conservatorship and durable power of attorney laws, this Article explores the history and propriety of permitting a capable individual to designate a ghostwriter to alter her estate plan in the event of her incapacity. The central policy question of this Article is a profound one for a rapidly aging society: Should a capable adult be able through a durable power of attorney to grant her agent specific authority to make, amend, or revoke her will?