By Senior Advocate Rick Law. Managing Partner and founder of the Estate Planning Center at Law Elder Law in Western Chicagoland.
This is an excerpt from an interview with Dr. Sanford Finkel, clinical professor of psychiatry at the University of Chicago Medical School and an active clinician. He is an expert consultant and has reviewed and testified in a wide variety of court cases involving contested wills, testamentary capacity, and undue influence.
“When trying to determine capacity, your lawyer must realize that with Alzheimer’s disease, people who lose their cognitive capacity and their functional abilities don’t always lose their social abilities. In a superficial conversation, the person can act it out and connect. But if you ask detailed questions, they may say, “My daughter will answer that.” They will defer it—deflect it. Or they may answer your question with a question.
They will give you something with a little piece of your question— two words maybe—and then they will shift it around. People often stay alert until very late in the illness.
To overcome this problem of assuming that socially pleasant people are cognitively competent, you have to ask open-ended questions. If someone is changing their will, your lawyer should ask them: “Why are you doing it? Why did you decide to change the percentages between your daughter and your son? What do you think is going to happen upon your death? What do you think is going to happen between your children?” Sometimes it’s possible to get the person to go back and try to reconcile things. If you don’t do that you wind up with a controversial will and litigation.”
It’s always a good idea for someone who is making a controversial will to ask them to see a specialist for an evaluation. And either videotape it, audiotape it, or get a written report.
“On the other hand, a person could have Alzheimer’s and still have testamentary capacity. It depends on the complexity of the task and the context. I was asked to give an opinion on an 89-year-old who had a moderate degree of Alzheimer’s. He insisted on making a will and he said, “I have a wife I’ve been married to for 65 years. I have two daughters who fight all the time. I want my wife to get everything.” I asked him “What do you have?” He answered, “I have a bank account.” “What do you have in it?” He responded, “I don’t know, maybe half a million. I’d have to look at my statement.”
I then asked, “What else do you have?” He answered, “I have the condo.” I asked, “How much is the condo worth?” He responded, “I would have to ask my real estate agent or my secretary.” So I concluded that he did have the elements of testamentary capacity. But it didn’t end there. He wound up in a nursing home and the daughters were fighting and one daughter was able to get him to sign something that left everything to her. In a week’s time he had been taken out of his home where he had lived for decades. His wife had died and he was in a nursing home with a new routine.
The situation had vastly changed in one week. He was totally befuddled. He had no idea what his assets were at that point in time. Remember the impact of context.”
Too many families needlessly lose everything they have. Don’t let that be you. If you need help building a fortress around your estate to protect it from creditors, predators, and the cost of chronic disease, give our office a call at 800-310-3100. Your first consultation is absolutely free. We’ll let you know what steps you need to take, right now, to protect yourself and your family. Call now, because when you’re out of money, you’re out of options!
Rick L. Law, Attorney, Estate Planner for Retirees.
Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future. Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care. Call 800-310-3100 for your free consultation now!