[Federal Register Volume 66, Number 167 (Tuesday, August 28, 2001)]
[Rules and Regulations]
[Pages 45169-45171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-21635]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 153
Legal Assistance Matters
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: This part establishes a uniform approach for the execution of
military testamentary instruments (including wills), powers of
attorney, and advance medical directives. It seeks public comment on
specific aspects of the activity.
DATES: This rule is effective June 12, 2001. Comments must be received
by October 29, 2001.
ADDRESSES: Written comments and recommendations should be sent to the
Office of the Under Secretary of Defense for Personnel & Readiness,
Program Integration, Legal Policy, ATTN: Lt. Col. Patrick Lindemann,
4000 Defense Pentagon, Washington, DC 20301-4000.
FOR FURTHER INFORMATION CONTACT: Lt. Col. K. Kinlin, (703) 697-3387.
SUPPLEMENTARY INFORMATION:
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 153 is not a significant
regulatory action. The rule does not:
(1) Have an annual effect to the economy of $100 million or more or
adversely affect in a material way the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been certified that this rule is not subject to the
``Regulatory Flexibility Act'' (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. This rule is being published to give notice to state
attorneys and paralegals of 10 U.S.C. Sec. 1044d. The Directive
establishes a uniform approach for the execution of military
testamentary instruments. Military testamentary instruments have the
same legal effect as a testamentary instrument prepared and executed in
accordance with the laws of the State in which it is presented for
probate. Thus, it is exempt from any requirement of form, formality, or
recording before probate that is provided for testamentary instruments
under the laws of a State.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been certified that this part does not impose any reporting
or record keeping requirements under the Paperwork Reduction Act of
1995.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been certified that this rules does not involve a Federal
mandate that may result in the expenditure by State, local and tribal
governments, in the aggregate, or by the private sector, of $100
million or more and that such rulemaking will not significantly or
uniquely affect small governments.
Executive Order 13132, ``Federalism''
It has been certified that this for does not have federalism
implications. The rule does not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
List of Subjects in 32 CFR Part 153
Military law, Military personnel.
Accordingly, 32 CFR part 153 is added to subchapter D to read as
follows:
PART 153--LEGAL ASSISTANCE MATTERS
Sec.
153.1 Purpose.
153.2 Applicability.
153.3 Definitions.
153.4 Policy.
153.5 Responsibilities.
Appendix A to part 153--Military Testamentary Preamble
Appendix B to part 153--Military Testamentary Instrument Self-Proving
Affidavit
Appendix C to part 153--Military Power of Attorney Preamble
Appendix D to part 153--Military Advance Medical Directive Preamble
Authority: 10 U.S.C. 301.
Sec. 153.1 Purpose.
This part implements 10 U.S.C. 301 for persons eligible for
military legal assistance by establishing a uniform approach for the
execution of military testamentary instruments.
Sec. 153.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Chairman of the Joint Chiefs of Staff, the
Combatant Commands, the Office of the Inspector General of the
Department of Defense, the Defense Agencies, the DoD Field Activities,
and all other organizational entities within the Department of Defense
(hereafter referred to collectively as ``the DoD Components''). The
term ``Military Services,'' as used herein, refers to the Army, the
Navy, the Air Force, and the Marine Corps, and the Coast Guard when it
is operating as a service in the Department of the Navy.
Sec. 153.3 Definitions.
Estate planning. The continuing process of arranging for the use,
conservation, and transfer of one's property and wealth during life and
upon death. The process produces a plan that may include some or all of
these: A testator/testatrix will, military testamentary instrument, a
trust, life insurance, an advance medical directive, a healthcare power
of attorney, designation of anatomical gifts, and other dispositive
documents.
Military advance medical directive. A written document, prepared in
accordance with this Part, which explains one's wishes about medical
treatment if one becomes incompetent or unable to communicate, or which
governs the withholding or withdrawal of life-sustaining treatment from
the maker of the document in the event of an incurable or irreversible
condition that will cause death within a relatively short period of
time, and when the maker is no longer able/competent to make decisions
regarding his/her medical treatment.
Military legal assistance counsel. A judge advocate, as defined in
10 U.S.C. 801(13) or a civilian attorney serving as a legal assistance
officer, under the provisions of 10 U.S.C. 1044.
Military power of attorney. A written instrument prepared in
accordance with this part, whereby one person, as principal, appoints
another as his/her agent and confers authority to perform certain
specified acts, kinds of acts or
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full authority to act on behalf of the principal.
Military testamentary instrument. An instrument that is prepared
with testamentary intent in accordance with this part and that:
(a) Is executed in accordance with this part (Sec. 153.4 (b)) by
(or on behalf of) a person, as a testator/testatrix, who is eligible
for military legal assistance.
(b) Makes a disposition of property of the testator/testatrix, and
takes effect upon the death of the testator/testatrix. It has the same
legal effect as a testamentary instrument prepared and executed in
accordance with the laws of the State in which it is presented for
probate. However, it is exempt from any requirement of form, formality,
or recording before probate that is provided for testamentary
instruments under the laws of a State.
Testator/Testatrix. A person who makes a will or military
testamentary instrument disposing of his or her property at death.
Will. A written instrument prepared consistent with State law for a
testator/testatrix to dispose of the testator/testatrix property upon
the testator/testatrix death. A will is often the principal document in
an individual's estate plan.
Sec. 153.4 Policy.
It is DoD policy that:
(a) General. (1) Although not every person needs a will or military
testamentary instrument, all military personnel shall consider the
advisability of making either. Whether a will or military testamentary
instrument is necessary or desirable, and its form and execution,
depend on the individual's desires, circumstances and the intestate
succession laws of the appropriate State. Ultimately, those eligible
for legal assistance must decide for themselves whether to prepare any
estate planning document(s).
(2) The Military Departments, within the limits of available
resources and expertise, shall inform and educate persons eligible for
legal assistance on estate planning generally, and the advisability of
preparing a will or military testamentary instrument. It is especially
important that military personnel be educated with respect to these
matters before mobilization, deployment, or similar actions.
(3) All commanding officers shall urge military personnel to seek
legal counsel regarding an estate plan well before mobilization,
deployment, or similar activities. However, any testamentary
instrument, to be legally effective, must be the free and voluntary act
of the person making it.
(b) Military testamentary instrument. A military testamentary
instrument shall:
(1) Be executed by the testator/testatrix (or, if the testator/
testatrix is unable to execute the instrument personally, executed in
the presence of, by the direction of, and on behalf of the testator/
testatrix).
(2) Be executed in the presence of a military legal assistance
counsel acting as presiding attorney.
(3) Be executed in the presence of at least two disinterested
witnesses (in addition to the presiding attorney), each of whom attests
to witnessing the testator/testatrix execution of the instrument by
signing it.
(4) Include a statement or preamble in form and content,
substantially as outlined at appendix A to this part.
(5) Include (or have attached to it), a self-proving affidavit, in
a form and content, substantially as outlined at appendix B to this
part
(c) Military power of attorney. 10 U.S.C. 1044b requires
recognition of powers of attorney prepared for persons eligible for
legal assistance. If prepared, such documents will include a statement
or preamble in form and content, substantially as outlined at appendix
C to this part.
(d) Military advance medical directive. Section 1044c of 10 U.S.C.
requires recognition of military advance medical directives prepared
for persons eligible for legal assistance. If prepared, such documents
will include a statement or preamble in form and content, substantially
as outlined at enclosure 4.
(e) Reserve component members. Subject to the availability of legal
staff resources, the Secretaries of the Military Departments may
provide legal assistance in connection with their personal civil legal
affairs to members of Reserve components and their dependents,
following release from active duty under a call or order to active duty
for more than 30 days issued under a mobilization authority (as
determined by the Secretary of Defense). Eligibility for such legal
assistance shall be for a period of time that begins on the date of the
release and is not less than twice the length of the period served on
active duty under that call or order to active duty.
Sec. 153.5 Responsibilities.
(a) The Under Secretary of Defense (Personnel and Readiness) shall
manage implementation of this part.
(b) The Secretaries of the Military Departments shall insure
compliance with this part and establish policies and procedures to
implement this part.
Appendix A to Part 153--Military Testamentary Preamble
This is a MILITARY TESTAMENTARY INSTRUMENT prepared pursuant to
section 1044d of title 10, United States Code, and executed by a
person authorized to receive legal assistance from the Military
Services. Federal law exempts this document from any requirement of
form, formality, or recording that is provided for testamentary
instruments under the laws of a State, the District of Columbia, or
a commonwealth, territory, or possession of the United States.
Federal law specifies that this document shall receive the same
legal effect as a testamentary instrument prepared and executed in
accordance with the laws of the State in which it is presented for
probate. It shall remain valid unless and until the testator revokes
it.
Appendix B to Part 153--Military Testamentary Instrument Self-Proving
Affidavit
Affidavit with the Armed Forces at__-----------------------------------
We, the testator/testatrix and the witnesses, whose names are
signed to the attached or foregoing instrument, being first duly
sworn, do hereby declare to the undersigned authority that in the
presence of a military legal assistance counsel and the witnesses
the testator/testatrix signed and executed the instrument as the
testator/testatrix military testamentary instrument and that
[he][she] had signed willingly (or willingly directed another to
sign for [him][her], and that [he][she] executed it as [his][her]
free and voluntary act for the purposes therein expressed. It is
further declared that each of the witnesses, in the presence and
hearing of the testator/testatrix and a military legal assistance
counsel, signed the military testamentary instrument as witness and
that to the best of [his][her] knowledge the testator/testatrix was
at that time eighteen years of age or older or emancipated, of sound
mind, and under no constraint or undue influence.
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Testator/Testatrix
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Print Name
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Witness Signature
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Print Name
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Witness Signature
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Print Name
Subscribed, sworn to and acknowledged before me by the testator/
testatrix, and subscribed and sworn to before me by the witnesses,
this date ______.
(Signed)
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(Official Capacity of Person Administering the Oath)
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Appendix C to Part 153--Military Power of Attorney Preamble
This is a military Power of Attorney prepared pursuant to
section 1044b of title 10, United States Code, and executed by a
person authorized to receive legal assistance from the Military
Service. Federal law exempts this power of attorney from any
requirement of form, substance, formality, or recording that is
prescribed for powers of attorney by the laws of a State, the
District of Columbia, or a commonwealth, territory, or possession of
the United States. Federal law specifies that this power of attorney
shall be given the same legal effect as a power of attorney prepared
and executed in accordance with the laws of the jurisdiction where
it is presented.
Appendix D to Part 153--Military Advance Medical Directive
This is a military advance medical directive prepared pursuant
to section 1044c of title 10, United States Code. It was prepared by
an attorney authorized to provide legal assistance for an individual
eligible to receive legal assistance under section 1044 of title 10,
United States Code. Federal law exempts this advance medical
directive from any requirement of form, substance, formality, or
recording that is provided for advance medical directives under the
laws of a State. Federal law specifies that this advance medical
directive shall be given the same legal effect as an advance medical
directive prepared and executed in accordance with the laws of the
State concerned.
Dated: August 22, 2001.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 01-21635 Filed 8-27-01; 8:45 am]
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