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This chapter focuses on the relationship of trustees to non-trustees who hold some power under the terms of the trust. The chapter examines the relationship from the trustees’ point of view, and considers how trustees can best ensure they do not commit a breach of trust in relation to the exercise of such a power by a third party. First, the chapter outlines some typical forms of third-party power. While third-party powers are bespoke, each the product of an individual trust instrument, it is possible to discern broad groups of common third-party powers. Secondly, the chapter considers what may likely go wrong in connection with each type of power, and considers the liabilities of the trustees which may arise in consequence. Understanding these liabilities demands a clear and accurate understanding of some very basic principles of trust law and equity. The chapter also considers how trustees should act in the light of these potential liabilities. Next, the chapter considers what drafting techniques may be used to make life easier for trustees who have to deal with a third-party power. Finally, it takes a brief look at the possibility of legislation in this area.
Trust law has grown and developed over recent years through the continued ingenuity of practitioners and the provision of innovative new trust laws by offshore jurisdictions. The wealth managed through the medium of trust law has also changed in recent years, as increasingly it has come from the newly rich of Asia. This brings distinctive issues to the fore: the role of settlors, family members and trusted advisors in trust administration; the position of trustees in relation to instructions coming from such persons; and an increased desire for confidentiality in trust administration and the settlement of trust disputes. This collection focuses on trusts which are deliberately created to manage wealth and the concomitant issues such trusts raise in other areas of law. Essays from leading members of the judiciary, practitioners and academics explore these developments and their implications for the users of trust law and for society in general.
We conducted a program of research to derive and test the reliability of a clinical prediction rule to identify high-risk older adults using paramedics’ observations.
We developed the Paramedics assessing Elders at Risk of Independence Loss (PERIL) checklist of 43 yes or no questions, including the Identifying Seniors at Risk (ISAR) tool items. We trained 1,185 paramedics from three Ontario services to use this checklist, and assessed inter-observer reliability in a convenience sample. The primary outcome, return to the ED, hospitalization, or death within one month was assessed using provincial databases. We derived a prediction rule using multivariable logistic regression.
We enrolled 1,065 subjects, of which 764 (71.7%) had complete data. Inter-observer reliability was good or excellent for 40/43 questions. We derived a four-item rule: 1) “Problems in the home contributing to adverse outcomes?” (OR 1.43); 2) “Called 911 in the last 30 days?” (OR 1.72); 3) male (OR 1.38) and 4) lacks social support (OR 1.4). The PERIL rule performed better than a proxy measure of clinical judgment (AUC 0.62 vs. 0.56, p=0.02) and adherence was better for PERIL than for ISAR.
The four-item PERIL rule has good inter-observer reliability and adherence, and had advantages compared to a proxy measure of clinical judgment. The ISAR is an acceptable alternative, but adherence may be lower. If future research validates the PERIL rule, it could be used by emergency physicians and paramedic services to target preventative interventions for seniors identified as high-risk.
Good faith is said to be central to fiduciary duties: it is said to be one of the core duties of a fiduciary in the execution of his office. Yet it is equally true that duties of good faith apply to others, who are undoubtedly not fiduciaries. How can this apparent inconsistency be explained? How can a central duty affecting fiduciaries be a duty which, if far from ubiquitous, is apparently much more common than its application to fiduciaries? Answering these questions is vital to understanding the scope and function of fiduciary doctrine.
The way forward is to recognize the fundamental point that legal duties, like all other things, can be categorized in different ways for different purposes: it is conceptually meaningless to categorize other than in a teleological fashion. This chapter addresses the application of that observation to duties of good faith in order to show that it is possible for such duties to apply to persons who are not fiduciaries, while at the same time meaning something unique when they are applied in the fiduciary context.
Some introductory observations on legal categorization
In seeking to understand a complex set of duties, such as the duties that apply to fiduciaries, one can legitimately ask different questions about those duties, to different ends. There is more than one way to skin a cat.
Several studies have reported high levels of distress in family members who have made health care decisions for loved ones at the end of life. A method is needed to assess the readiness of family members to take on this important role. Therefore, the purpose of this study was to develop and validate a scale to measure family member confidence in making decisions with (conscious patient scenario) and for (unconscious patient scenario) a terminally ill loved one.
On the basis of a survey of family members of patients with amyotrophic lateral sclerosis (ALS) enriched by in-depth interviews guided by Self-Efficacy Theory, we developed six themes within family decision making self-efficacy. We then created items reflecting these themes that were refined by a panel of end-of-life research experts. With 30 family members of patients in an outpatient ALS and a pancreatic cancer clinic, we tested the tool for internal consistency using Cronbach's alpha and for consistency from one administration to another using the test–retest reliability assessment in a subset of 10 family members. Items with item to total scale score correlations of less than .40 were eliminated.
A 26-item scale with two 13-item scenarios resulted, measuring family self-efficacy in decision making for a conscious or unconscious patient with a Cronbach's alphas of .91 and .95, respectively. Test–retest reliability was r = .96, p = .002 in the conscious senario and r = .92, p = .009 in the unconscious scenario.
Significance of results:
The Family Decision-Making Self-Efficacy Scale is valid, reliable, and easily completed in the clinic setting. It may be used in research and clinical care to assess the confidence of family members in their ability to make decisions with or for a terminally ill loved one.