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     Elder Abuse is a buzzword.  People are afraid of being accused of Elder Abuse and generally back down in their care of the person who relies on them most.  Have someone independently evaluate if you have done anything illegal or against the interest of the person you are caring for.  Consult with an attorney sooner rather than later.              

Please forward questions that you would like us to consider for future columns.  You may email us directly at mamheine@heinelawgroup.com

For more information, visit her website at margaretamheine.com.

by Margaret Heine
 

LEGAL ‘EASY’ DOES IT…  TRUE STORIES FROM THE TRENCHES

I CAN DO WHAT I WANT!!

 Can you?  The issue of mental capacity is coming under fire more and more often when discussing the rights of elders to manage their affairs and finances.  If they refuse medical treatment does that mean that they lack the mental capacity to make decisions regarding their medical care?  If they decide to get married at 87, is that crazy, in the mental sense of course?  What about spending their money on charitable causes, QVC, or the waitress at Denny’s?  If you want to change to your will or trust, can it be challenged?  The answers may surprise you.

     Scenario One:  Mrs. Bosley fell and broke her hip and arm.  She went to the hospital and then to rehab.  Mrs. Bosley lived alone and one of her nieces checked in on her and saw her every week.  While in rehab, Mrs. Bosley asked the niece to take care of her financial matters, pay the bills, and gave her a power of attorney.  Niece did all that was asked of her.  She noted that her aunt was getting forgetful and was easily persuaded, and she worried about whether or not at age 87, aunt was mentally acute enough to take care of her own business.  Mrs. Bosley’s doctors agreed with the niece, Auntie Bosley did need help and she couldn’t take care of her own physical needs or financial needs adequately.  The doctors gave Niece letters to that effect.  Niece then became the successor trustee of the Trust for Auntie Bosley.  Niece arranged for full time caregivers and encouraged family members to visit Auntie.
    Auntie took exception to Niece’s actions.  She did not like that she was no longer “in charge” of her finances.  She complained mightily to everyone who would listen that Niece was a crook, stole from her, and she didn’t like it.
     Another relative took Auntie to a lawyer to get her trust and will changed—so, Niece could get fired as the trustee.  Niece responded to lawyer’s inquiries and provided the lawyer with copies of the Doctor’s letters indicating that Auntie could not take care of herself.  Lawyer concluded that even if the Doctors were correct, they believed that Auntie could change her will and trust as she was capable of testamentary capacity.

 What?  How can that be?
    Auntie can change her trust and will, despite the doctors’ letters indicating that she cannot take care of her physical and financial needs.  Auntie simply needs to know what she is doing.  Does she understand what changes she is making?  Does she comprehend the impact of her changes?  Are the changes being made because she wants them or because someone is forcing her to make the changes? 
     A 1948 California case, The Estate of Selb (84 Cal.App.2d 46) first set out the concept that even if a person is old, feeble, forgetful, has filthy personal habits, has eccentricities, physical disability, mental confusion, hallucinations or delusions, does not mean that they lack testamentary capacity. 
     The attorney has to make inquiries of Auntie to determine if the client is competent to make these changes, and uses their experience and knowledge in order to interview and assess the testamentary capacity of Auntie.  The lawyer is responsible to the client and to make sure that their wishes are carried out, even if the person has borderline testamentary capacity.  If a lawyer believes that the person does not have testamentary capacity, then the lawyer will refuse to draft the changes or the initial documents.
     It is important to realize that although a person may not be able to balance their bank statement, it doesn’t mean that they cannot direct where their money is left after they die.  Many times a person does not really think about their testamentary plan until they are sick, sometimes feeble, sometimes a little confused.  They still have the right to determine what should happen to their assets after their death.
     So, there are really two different standards.  Auntie may need help because she cannot bend, get out of bed, go the bank, wash herself, she may be a little forgetful, but ask yourself—does she know her relatives?  Does she appreciate the value of money?  Does she know where she is, who is alive and who is dead?  What is the degree of inability?
     Capacity is a factual question.  There may be a variety of opinions regarding capacity.  There may also be fleeting medical conditions which cloud capacity from time to time, but if there is lucidity which gives the person understanding of the changes they are thinking of making, they most likely have testamentary capacity.
     It is important for those who hold Powers of Attorney for their loved ones, that even if they do take over the banking or bill paying to keep the loved one informed and involved in the process, unless they have absolutely no desire to know or no capacity to understand what is taking place.  These are tools to help your loved one.  If someone is in control of their faculties, no one, regardless of their advanced age, want to feel that they cannot make decisions for themselves.  It is a fine line, but one that can be gracefully maneuvered with respect. 
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