25, 72, 44, 6 and 24 - not your weekend lottery numbers

nonley@hullandhull.com (Hull & Hull LLP) — Mon, 08 Sep 2008 04:00:00 -0500

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.

Power of Attorney Litigation and Incapacity

nonley@hullandhull.com (Hull & Hull LLP) — Thu, 07 Dec 2006 00:45:38 -0500

Perhaps the most difficult issue that arises in power of attorney litigation relates to a determination of the onset of incapacity and the varying degrees of incapacity. These issues have a direct bearing on the nature of the fiduciary obligation of the attorney.

Under the Substitute Decisions Act, an attorney has a higher duty of care (a) if the grantor is incapable of managing property; or (b) if the attorney has reasonable grounds to believe that the grantor is incapable of managing property.

The reality is that there is often no clear determination made that the grantor is incapable. All too often, the Court is left trying to make that determination a considerable period of time after the fact.
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The difficulty, of course lies with the question of proof. The grantor, now being incapable or deceased, is unable to provide any insight as to the nature of the authority that was given to the attorney as his agent. On the other hand, the attorney/agent is typically under an evidentiary burden of corroborating his position that the grantor had authorized his actions. This burden is enhanced when the financial decisions made were, by all appearances, imprudent or not in the apparent best interests of the grantor.

Have a great day, David

Incapacity - Toronto Estate Law Blog

25, 72, 44, 6 and 24 - not your weekend lottery numbers

Power of Attorney Litigation and Incapacity