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CIVIL LAW AND MONASTICS

During this period of concern for writing constitutions and secondary documents to implement the Code of Canon Law, many monastic communities have not realized the need also to redo or, even more, to create civil legal documents. The Code itself requires certain legal documents, some of them not required in the old Code. However, the demands of modern American society also make it imperative that certain legal documents not required by the Code also be executed by each monastic. The following commentary will briefly indicate some of the major civil legal documents which a monastery should have in the file of each monastic.

Last Will and Testament

The Code requires that each monastic before perpetual profession execute a will which is valid in civil law. Monastics generally do this. However, the requirement is that it be valid in civil law. Many of the wills executed years ago no longer may be valid under state law. Further, the form of a will in many states has changed. Thus the will of each monastic should be updated every so many years.

Cessation of Administration of Property

This document is required by canon 668, paragraph 1. It is to be executed by a junior or by a finally professed who does not totally renounce property. By this document the monastic transfers administration of any property owned by him/her to the control and management of another. In the past this management was transferred to the monastic community which managed the property and received the present benefits from the property. However, under the general law of the Church the person is not required to transfer administration and benefit to the monastery. But particular law may require this, as is the case now with some constitutions of women monastics. When the monastic cedes the administration of the property to another (usually in a trust of some kind), two consequences flow for the monastic: 1) He/she is not to be involved in any administration of the property. The terms of administration are to be established in the initial administration document and govern the lifetime of the administration unless changed by the monastic with the permission of the abbot/prioress. 2) The monastic is not to receive any benefits from the property. Therefore, the administrator cannot give some of the proceeds from the property to the monastic for trips, clothing, etc.

Generally for juniors or novices, this document is not executed unless there is actual property which needs to be administered. For juniors the easiest form may be to execute a Power of Attorney rather than set up a trust or other instrument of cessation. For perpetually professed monastic women who do not give the administration of the property to the monastery, a document of accountability may be desirable as a way to ascertain that the property is being administered in accordance with the two consequences mentioned above. The document would state that the monastic would render a yearly accounting to the prioress or permit the prioress to obtain an accounting from the administrator of the property.

Total Renunciation with Cessation of Property to the Monastery

The Code requires that when monastic profession itself involves total renunciation (e.g. solemn vows) or the monastic voluntarily undertakes total renunciation, a civil document is to be executed to this effect (canon 668, paragraph 4). This document indicates that anything which comes to the monastic is acquired for the monastery and belongs to the monastery. This involves situations when civil law requires the property to pass through the hands of the monastic or to remain in the name of the monastic. The force of this document is useful for present tax purposes and also when a monastic leaves the community. In the latter instance, the monastic may try to claim royalties or other rights in music, publications or other properties. The document establishes otherwise.

Durable Power of Attorney

The Durable Power of Attorney, not required by the Code, names a person to act in the stead of another. For instance, it may give a person the power to sign checks in the name of another. The power can be broad or narrow. It is drafted according to the statutes of each state. This power is very useful in situations where a monastic is elderly. It permits the abbot/prioress to act civilly in the name of the person. Because of the longevity of monastics and the potential incompetency of elderly monastics, such a document should be executed while the person is competent, e.g. at perpetual profession, rather than waiting until the person becomes incompetent and then having to get a court order establishing a guardianship. The power is also useful when a monastic is assigned to a work outside of the United States, but needs business conducted within the United States.

Medical Release Form

Under American law, only the person or his/her nearest relatives have the right to medical information. Thus the monastic superior is not civilly entitled to know the medical condition of the monastic unless the monastic so consents. Up to the present this has not appeared to be a problem, since monastics generally have received hospital care at a Catholic hospital which understood the relationship between the monastic and the superior. However, the situation is changing as monastics are more frequently hospitalized in non-Catholic hospitals. To overcome the medical information problem, a simple Medical Release form can be executed. It gives permission to release medical information to the monastic superior. Generally this form should contain a limitation clause which prohibits the release of confidential, psychological information.

Intentions Concerning Death/Living Will

Most states have enacted statutes which permit a competent person to give instructions on health care when the person becomes incompetent and is terminally ill. The statutes also allow a person to appoint another to make health care decisions in such an instance. Some state statutes only provide for such an instrument when the person is terminally ill. But in many states the instrument is the durable power of attorney for health care. The latter permits a person to appoint another to make decisions regarding health care when the person becomes incompetent. The power enables the appointed person to make decisions both in terminal and non-terminal cases. It is advantageous for a community to have each member execute the civil document enabling the superior or another to make decisions in cases of a member being incompetent and terminally ill. If the state statute permits the durable power of attorney for health which covers both terminal and non-terminal instances, this document should be executed. However, no person can be forced to execute such a document and no person can be forced to name the superior as the appointed decision maker.

Disclaimer of Wages

When a person enters the novitiate, he/she should be required to sign a document which states that he/she will not make a claim for remuneration for work or time given to the monastery. This has been the practice in most monasteries. Some have advocated having this document signed if a person enters a postulancy program. This may be good, but it depends upon the particular monastery's postulancy program, e.g. length of time at the monastery, type of work, desire not to make postulancy too legal, etc.

The above are some of the legal documents which a monastic community should discuss having community members execute or re-execute so as to make them comport with present law and needs. Many monasteries have undertaken to draft and execute many of the documents mentioned above. One such monastery is Our Lady of Grace, Beech Grove, Indiana. It has drafted a set of forms for the implementation of many of the above canonical and civil needs. The reported experience at Beech Grove is very good, especially with regard to the renewal of the concept of monastic poverty.

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