Many people become incapable of managing their own affairs whether due to aging, disease, or serious accident. If one is not able to act one’s own behalf, then that means another must act for him or her. This fiduciary relationship can take different forms in law. This post explores the canonical understanding of these civil arrangements.
In American Civil Law
If a court determines an adult to be incapable of caring for one’s own person, the court will appoint a fiduciary termed a “guardian.” If one is merely incapable of managing one’s own property, then the court-appointed fiduciary is termed a “conservator.” (Note the terminology does vary by jurisdiction, so this is not a hard and fast distinction.) The court’s oversight ensures the fiduciary fulfills his or her duties, but with increased court involvement comes increased costs and time plus that fact it becomes a matter of public record.
An alternative to a court-appointed fiduciary is a privately-appointed “agent” or “attorney-in-fact.” An agent/attorney-in-fact is empowered by an individual (known as the “principal”) to legally act on his or her behalf. The principal determines when the agent is empowered and the extent to which he can act via a legal instrument call a power of attorney document. This instrument, however, must be executed before the principal becomes incapacitated, i.e. one must plan ahead. Traditionally, common law held that an agent/attorney-in-fact lost power at the same time the principal became incapacitated. This made it useless for estate planning until states rewrote their laws to create an enduring agency that continues after the principal is incapacitated. This is termed durable power of attorney. The incapacitation that triggers a power of attorney is generally not a court determination but the written determinations of one or more physicians. The reduced costs, the flexibility, and the privacy of this alternative make it by far the most common means of providing for one’s incapacitation.
A Canon Law Approach
Understanding guardianship/conservatorship through the lens of canon law is easy. A guardian/conservator is essentially the same as the Roman law concepts of tutor (the guardian for a minor) and curator (the guardian for a adult), which canon law inherited and to which the code refers to in several places (cann. 98, 105, 1478, 1479, 1508, 1519, 1521, and 1524). In general, canon law observes the prescripts of the relevant civil law in what pertains to guardians and their authority (can. 98 §2), which means it leaves the determination of capacity and appointment of guardians mostly to civil authority. However, canon law does allow the Church the ability to make its own determination and choice of curator in specific instances for ecclesiastical matters (cf. Exeg. Comm., vol. IV/1, 967). Since civil laws rightly doesn’t address capacity to act in spiritual matters, this determination and curatorship must be made by ecclesiastical authority according to the canonical understanding of legal capacity.
The equivalent to the traditional agent/attorney-in-fact in common law is a procurator. A procurator is essentially a personal representative, a proxy, who is freely empowered by a person (the “mandator”) to act on one’s behalf in legal and non-legal matters, for a specific task, or even generally (cf. Wernz-Vidal , Ius Canonicum, vol. 4, 215–219). They are empowered by an instrument called a mandate (cf. 1484 §1) or a special mandate (cf. 1485). They can contract obligations (can. 310) and receive public documents (cf. can. 487 §2) but not vote on another’s behalf (can. 167 §1). They can contract marriage on another’s behalf (cann. 1104–1105) but not swear oaths for others (can. 1199). A procurator ad litem can bring a suit in an ecclesiastical tribunal (can. 1504, 3°) and undertake a trial (can. 1508 §3), appear in court (cann. 1477, 1559, and 1725), renounce a legal action (1524 §3) and appeal a decision (1486 §2).
A canonical procurator, however, is simply a proxy, a stand-in for the mandator. If the mandator can no longer act then neither can his stand-in. This explains why canon 1105 §4 revokes the mandate upon the mandator’s development of amentia. Essentially, becoming non sui compos is equated with death (Coronata, Institutiones Iuris Canonici, vol. 3, 112). In only one case does canon law foresee a procurator continuing after the death of a mandator, but the exception is not significant. That exception (can. 1518, 2°) establishes that if the instruction phase of a trial has concluded and a party to the case dies, the judge must continue it and bring it to judgment after having cited the procurator or heir. This doesn’t change things because after the close of instruction, parties are no longer active participants in the process. It is entirely in the tribunal’s hands until a decision is rendered, at which point the parties face the decision whether to appeal. So in point of fact, the procurator is not doing anything on the descendant’s behalf. Compare this situation to one in which a party dies before the close of instruction. In that case, it is the heir’s choice whether to continue and no mention is made of the procurator because the procurator’s mandate to act is gone (can. 1518, 1°).
What is the canonical approach to durable power of attorney?
Canon law is a bit less flexible than American common law in the realm of legal fiduciary relationships for incapacitated persons. While both have permanent fiduciaries appointed by competent authority (guardians/conservators and tutors/curators) and non-enduring privately appointed fiduciaries (agents/attorneys-in-fact and procurators), canon law lacks an enduring privately appointed fiduciary that compares with the statutorily created durable power of attorney. With no direct canonical equivalent, it seems to me the best solution would be to interpret durable power of attorney as a procuration while the principal is still capable and following incapacity to interpret it as a curatorship.
Without doubt this is how I would approach it if the incapacitation is determined by means that are civilly effective, even if it just the determination of physicians and not a judicial determination by a court. But what if a person with a durable power of attorney arrangement is determined to be incapacitated by an ecclesiastical authority while not yet having been determined incapacitated by civilly cognizable means? I recognize this is almost an incredible hypothetical, but I would argue that the principle of “canonization” of civil law laid out in canons 98 §2 and 22 requires that in the eyes of ecclesiastical authority this ecclesiastical determination should trigger the curatorship-like powers of the durable power of attorney. In effect, after the determination, ecclesiastical authority would respect the power of attorney arrangement (as if the determination had been made civilly) and not appoint a curator because this would implicitly reject the value of civil durable power of attorney arrangements.
I think this approach to durable power of attorney is the most consistent with the deference canon 98 §2 affords the civil prescripts concerning incapacitation and guardianship.
Servatis Servandis 