Understanding Duties and Conflicts of Interest--A Guide for the Honorable Agent

This article examines the importance of understanding agent duties and conflicts of interest, both for drafting a power of attorney that meets a principal’s objectives and for providing guidance to the agent who will act under its authority. Professor Whitton suggests that current custom and practice with respect to powers of attorney often overlooks the need to adjust agent duties to accommodate the principal’s expectations, thus resulting in inadvertent conflicts between the duty to do what the principal expects and default duties of loyalty. The article offers practical guidelines for identifying and reconciling these conflicts, as well as best practices to improve the agent’s understanding of the authority granted in the power of attorney, the principal’s expectations for exercise of that authority, and the duties an agent must meet when carrying out the principal’s expectations

The UPC Substituted Judgment/Best Interest Standard for Guardian Decisions: A Proposal for Reform

The introduction in 1997 of substituted judgment as a guiding principle for guardian decisions was a key contribution of the UPC to guardianship reform. The current UPC section 5-314(a) instructs guardians to consider the expressed desires and personal values of the ward when making decisions and to at all times...act in the ward\u27s best interest. This dual mandate for guardian decisions was intended to promote the self-determination interests of incapacitated adults. This article argues that in practice the standard has failed to achieve this goal. It analyzes the shortcomings of UPC Section 5-314(a) and other statutory decision-making standards and offers an improved decision-making model. Frolik and Whitton propose reform of Section 5-314(a) to provide better guidance for guardians, and to harmonize the standard for guardian decisions with other surrogate decision-making standards within the UPC

Surrogate Decision-Making Standards for Guardians: Theory and Reality

This Article examines the theoretical and practical implications of the substituted judgment and best interest standards for decision making by guardians. After providing an overview of the current decision-making standards in guardianship statutes, the Article synthesizes theoretical debates about what these standards mean and whether they provide an effective paradigm for surrogate decision makers. The authors then use new survey data to offer conclusions about the degree to which the substituted judgment and best interest standards are understood and meaningfully applied by guardians