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Estate Planning for the Elderly (With Apologies to Dr. Suess)

March 9th, 2011 Comments off

It’s a dilemma that every estate planner faces. Mrs. Martinez’ grandniece, once removed, (GNOR) makes an appointment for her to make a will. At the appointed time, they arrive together . . . alone. Mrs. M. is a lovely lady somewhere between 80 and 120 years old, has a strong accent and doesn’t hear well. GNOR offers to sit in on the consultation and translate. During the introductions, GNOR explains that Mrs. M. is a widow and lives in a large, old house. Her four grown children live out-of-state. GNOR lives in Mrs. M’s basement, pays no rent, but helps with the chores. She says that Mrs. M. wants to give her a power of attorney and devise her the house when she dies. She offers:

My Aunt’s an old woman who came from Peru;
She needs an estate plan but doesn’t know what to do
Her children are absent, don’t visit or call
As God is my witness, they don’t help at all.
One is a doctor who lives in St. Paul
Another’s in Georgia and speaks with a drawl
I moved in last year when my aunt had a fall
I’m here to help her for the long haul.

At the ends of the story Mrs. M. starts to bawl. What’s the real story? Should my skin start to crawl? As I offer her a tissue and a glass of water, I suggest that I speak to Mrs. M. privately.

Many elderly people find themselves alone when their spouses die and their children are grown. They need assistance and companionship but their traditional family supports have collapsed. So they look for other options. Hopefully they have well-meaning extended family members or friends who fill the breach. But too frequently, they are preyed upon by grifting wolves who cloak themselves in a shroud of love and friendship. The lawyer’s job is to help the client tell the difference. It’s a delicate but necessary task. You must separate the client from the “helper” so that you hear the clients’ wishes without interference. It’s essential to know if he or she is able to make an independent decision and isn’t unduly influenced. If you sense that the “helper” is helping him or herself, it’s time to pull the plug on the consultation as a lawyer is ethically estopped from preparing an estate plan for a client who is unduly influenced or mentally impaired. It’s a hard call, especially when the client is a stranger and seems to be in danger. The meeting is fleeting and physical infirmities like hearing loss or speaking impairment, may make an elderly person seem mentally incompetent when they are not.

The elderly client and the “true helper” are better served when the lawyer makes careful inquiries such as I have described. If he doesn’t, the will may be denied probate when a distributee challenges it.