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Fixed Intentions: Wills, Living Wills, and End-of-Life Decision-Making
Baron, Jane B.
Baron, Jane B.
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Journal article
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2020
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http://dx.doi.org/10.34944/dspace/6686
Abstract
Contemporary trusts and estates law is built on the premise that individuals can and should have fixed intentions with respect to the disposition of their property at death. These intentions can and should be fixed in a written document, and that document can and should be fixed against other outside evidence of intention. Experience with endof-life health care decision-making gives reason to question these premises. In the health care context, intentions have proven to be fluid, and the documents purporting to record individuals’ wishes have often proved unreliable. This Article examines the implications for wills of the literature on end-of-life health care decision-making. Advance health care directives and property wills are alike pre-commitments, attempts in the present to bind the future, but studies in the end-of-life health care decisionmaking context show there are serious issues with this process. Individuals simply do not care to decide about post-competency
treatment, those who do make such decisions often change their minds, and cognitive biases operate to limit individuals’ ability to predict accurately in the present what they will want in the future. Many of these issues arise also in the context of end-of-life property decisionmaking and unsettle many of wills law’s fundamental premises about intention. The final part of the Article suggests avenues for further empirical study and explores the practical significance of this potential research for estates law, particularly the potential to displace the vision of the estates attorney as a passive scrivener who simply asks what the client wants and writes it down. It may be that the wishes expressed in a will may be formed in response to, and shaped by, the attorney’s questions
rather than being brought out by those questions. The Article concludes by asking whether there might be a way to honor fluid intentions in the property context that does not destroy the utility of testamentary documents as a safe harbor.
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Jane B. Baron, Fixed Intentions: Wills, Living Wills, and End-of-Life Decision-Making, 87 Tennessee L. Rev. 375 (2020).
Available at: https://tennesseelawreviewdotcom.files.wordpress.com/2020/08/baron-formatted-1.pdf
Available at: https://tennesseelawreviewdotcom.files.wordpress.com/2020/08/baron-formatted-1.pdf
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This article was published originally at 87 Tenn. L. Rev. 375 (2020) and is reproduced here by permission of the Tennessee Law Review Association, Inc.
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Tennessee Law Review, Vol. 87, No. 2
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