Practical Ethics in Elder Law (HYPOTHETICAL #5)

PROTECTING FUTURE INCOMPETENCY CLAIM

Charlie: Referred to a person who is old but appears competent, who says he wants to change his will and leave out some beneficiaries. What should you do to protect future claims of incompetency after the client dies and the persons left out of the new will (or trust) contest.


Paul: The problem with this fact pattern is that you never know when there will be some issue of competence down the road. If you can see it coming, I would recommend getting a doctor (or two) to fill out an affidavit attesting to client’s competence. If we can’t see it coming, and even still in these cases that we can, it turns on a situation of defending the case based on our routine.

I think building a consistent routine of asking the right questions. As we know, the standard for testamentary capacity is pretty low. For powers of attorney, it can be even lower! For a healthcare power of attorney, the client need only understand who the person is he or she is naming and trusts that the person will act in his or her best interests when it comes to healthcare decisions! For POA include that they understand what their assets are. For an estate plan, generally, it’s important that the client understands what he/she has, who is it going to go to now, who would you like it to go to. If we get into the habit of asking these questions every time, then there really cannot be much of a case as to testamentary capacity. Even if a 3rd party shows up later with doctor’s records showing the client was deemed to suffer from “dementia” or “Alzheimers”, this does not mean the person lacked testamentary capacity! In fact, barring an eye witness to the signing testifying that the person did not understand these things AT THE TIME OF THE SIGNING, nothing short of judicial declaration of incapacity for testamentary purposes will do!

It’s their case to prove! OF course, we can’t stop from being sued, but we can build a good defense in anticipation! We may even consider having every client fill out a simple capacity test, though many of those are difficult to understand, any proof of their capacity AT THAT TIME, would be helpful!

Dave: Paul, I totally disagree with you on this one! Do I do this for all my clients or just the old and feeble ones? Such precautions as bringing a physician into the process of determining competency prior to execution of estate planning documents or videotaping the conference would be very burdensome logistically, intrude on attorney client confidentiality, physician-patient confidentiality, and raise a strong inference that the client was incapacitated. If anyone later contests the plan they will surely "make hay" out of that inference. I owe the client the benefit of the doubt and if I cannot in good conscience subscribe to his capacity as attesting witness or notary, I should simply decline the representation.