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§ 8.7 REMAINDER INTERESTS(j) Durable Power of AttorneyAn individual should have a durable power of attorney document, designating anattorney-in-fact to make economic decisions for the individual and deal with hisor her property should the individual become incapacitated. Durable powers ofattorney can avoid the necessity of a court-appointed guardian and/or conservatorin the case of incapacity.Another such document is the durable power of attorney for health care decisions.This instrument allows an individual to designate an attorney-in-fact to actin the individual’s place in the making of medical decisions. Decisions of thisnature include signing medical consents and hiring and discharging physicians.(k) Living WillA living will enables an individual to direct the termination of artificial life supportin the event the individual is terminally ill. 188§ 8.7 REMAINDER INTERESTSOutright bequests to charity by will qualify for the estate tax charitable deduction.To qualify for an estate tax charitable deduction, if a remainder interestbequest to charity is made using a split-interest trust, the trust must be a charitableremainder trust 189 or a pooled income fund. 190(a) In GeneralIn one instance, the estate tax charitable deduction was denied because therecipient of a bequest did not qualify as a charitable entity. The executor of theestate secured from the organization an affidavit certifying that it was a charitableorganization. He failed, however, to review the IRS’s Cumulative List ofCharitable Organizations; 191 the organization had been deleted from the listprior to the transfer from the estate. 192In another instance, a charitable deduction for a portion of the residue of adecedent’s estate, transferred to a testamentary trust for the benefit of specifiedcharities, was imperiled because of provisions in the trust document that arguablyenabled distributions to noncharitable beneficiaries. A federal district courtinterpreted the language to permit distributions for private benefit, although on188 A court considered a motion for summary judgment filed by the federal government in a case against an individualwho pled guilty to tax fraud. The government alleged that certain transfers of property by him werefraudulent under state law and that other defendants were merely alter egos of trusts into which assets wereplaced. Each of this individual’s seven children were beneficiaries of trusts. Title to his residence, including arecreation building and boathouse, was transferred to a trust for consideration of less than $100 (although heand his wife continued to live there). The motion for summary judgment nonetheless failed. The reason for thisdefeat handed to the government was that the defendants were able to raise questions of material fact as to theiractions. They asserted that these transactions were merely effective estate planning techniques. United Statesv. Kattar; 99-2 U.S.T.C. 50,834 (D.N.H. 1999).189 See Chapter 12.190 See Chapter 13.191 IRS Publication No. 78.192 Clopton Estate v. Commissioner, 93 T.C. 275 (1989). 255