[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

[[Page 45170]]

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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