
Contents
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I. Introduction I. Introduction
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II. Trigger for Fiduciary Duty II. Trigger for Fiduciary Duty
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A. Guardians and Conservators A. Guardians and Conservators
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B. Powers of Attorney for Finances and Health Care B. Powers of Attorney for Finances and Health Care
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C. Representative Payees and Other Government Fiduciaries C. Representative Payees and Other Government Fiduciaries
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III. Duty of Loyalty III. Duty of Loyalty
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IV. Duty of Care IV. Duty of Care
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V. Other Legal Obligations V. Other Legal Obligations
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VI. Remedies VI. Remedies
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VII. Conclusion VII. Conclusion
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13 Fiduciary Principles in Surrogate Decision-Making
Get accessNina A. Kohn is Associate Dean for Research and Online Education and David M. Levy Professor of Law at Syracuse University College of Law.
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Published:09 May 2019
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Abstract
This chapter examines the fiduciary principles governing surrogate decision-making. Surrogate decision-making relationships arise when one person is appointed to make decisions for another, and are often used to make decisions for individuals with acute medical conditions or cognitive disabilities that make it difficult or impossible for the individuals to make decisions for themselves. A surrogate decision maker may be authorized by the individual for whom decisions are to be made or by a third party, including a court or a federal agency providing benefits to the individual. This chapter first considers how fiduciary duties are triggered in surrogate decision-making relationships and describes the requirements for appointment and acceptance by type of surrogate: guardians and conservators, agents acting under a power of attorney for finances or health care, and representative payees and other government fiduciaries. The discussion then turns to the surrogate decision maker’s duty of loyalty and duty of care, along with other fiduciary obligations. The chapter concludes with an overview of remedies available for a breach of fiduciary duty by a surrogate.
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