Estate Planning, Elder Law, Probate, and Mental Capacity
By Pamela D. Wilson, MS, BS/BA, CG, CSA
Estate planning, elder law, and probate are legal specialties with the responsibility of evaluating mental capacity to create plans that will avoid contested litigation by family members. While creating estate plans may seem straightforward, pitfalls exist. Attorneys new to the specialty or law firms with limited experience may create estate plans that are later challenged. Attorneys specializing in litigation—with little or no experience in estate, elder law, or probate—represent adult children angry about not receiving the Barbie doll or train set. The results of this unnecessary litigation are excessive fees, negative press for professional fiduciaries, and the destruction of family relationships. Collaboration between elder law and elder care professionals is beneficial.
Estate or Probate Litigation
Estate planning, elder law, and probate attorneys create and execute estate plans, support administering estates of the deceased, and initiate guardianship or conservatorship proceedings for minors or incapacitated adults. The risk for appointed family members or professional fiduciaries named in these plans is significant when litigation occurs to contest wills, estate documents, or legal appointments.
Common challenges that result in estate or probate litigation include: moving a client to an appropriate care situation at the objection of family, moving a client out of state, undue influence by family or others, emotional or financial abuse, visitation by family or spouses, restraining orders, neglect of care, will contests, and questioning the role of the appointee for prudent actions. When a spouse is diagnosed with memory loss, a multitude of unexpected concerns ignite including consensual sex with individuals (other than the spouse) living in a care community with the diagnosed spouse. When money, self-interests, or injured feelings arise, family members are relentless in pursuing litigation.
Unless the drafting attorney has decades of experience, issues not addressed in estate plans or discussed with clients may result in future and unnecessary litigation. Medical powers of attorney and living wills may not consider the realities of the healthcare system or the benefit of care management. My experience as a professional fiduciary (guardian, power of attorney, trustee, and personal representative) and over 20 years’ experience in elder care substantiate the importance of thorough and detailed estate planning. This includes discussing current mental capacity and planning for a future diagnosis of mental incapacity.
Detailed Estate Plans May Avoid or Limit Future Litigation
When creating estate plans it is important for attorneys to discuss the backgrounds, relationship challenges, and motivations of all family members and other interested persons. This includes a review of who might challenge the documents today or years into the future and for what reasons. Do jealousies exist about favoritism—one child favored over another? Is there a child who could not “get his or her life together” and has been financially supported by parents who could not say no? What about interests of adult children in property, jewelry, the grand piano, worthless but sentimental items?
Past emotional injuries between parents and adult children or between adult children that were never resolved become front-page news. Many of these slights were swept under the rug when adult children moved out of the home and established their own lives. Battles today begin at the time of intervention by powers of attorney or the settling of estates. Families appearing perfect by outside appearances quickly turn dysfunctional, caustic, and destructive. Unnecessary and costly litigation may be the result.
Many adult children feel entitled to the estates of their parents. In 2017, more than 16 million family members and other unpaid caregivers provided an estimated 18.4 billion hours of care to people with Alzheimer’s or other dementias. This care is valued at more than $232 billion, but its costs extend to family caregivers’ increased risk for emotional distress and negative mental and physical health outcomes (1).
Family caregiving is challenging. The long-term effects are not immediately evident. Daily problems occur in managing care in the home, overseeing care in communities, interacting with healthcare professionals, advocating for needs, and the long list of other tasks that result in a need for high involvement by family caregivers. Many family caregivers become overwhelmed, don’t know the appropriate actions to take, may feel intimidated by other family members, fail to act, or make poor decisions.
Who to Appoint and the Importance of Succession Planning
Discussion surrounding the appropriate person to appoint, whether a family member, friend, or professional fiduciary is crucial. Asking whether the appointee understands the responsibilities and has the ability to perform the role is important.
Family members and friends often agree to be appointed from a sense of duty or hesitancy to say no. At the time of need, the situation has changed. The appointed family member or friend lacks the ability, time, or interest to advocate in the best interest of a loved one. Not devoting serious thought or failing to have an extensive conversation about the best person to appoint and the responsibilities of the appointment is a disservice to the client when creating estate planning documents.
There are other situations where appointed adult children have a greater interest in maintaining their financial inheritance versus spending the parent’s money to ensure good care. Why not put mom or dad in a horrible community and hope he or she dies quickly? How likely is this to occur based on the present family situation and relationships? Provisions can be written into estate documents to manage this concern if appointing a child is the true desire of a parent.
Another alternative is appointing a professional fiduciary in lieu of family or friends. By providing a clear understanding of wishes and desires, the professional is able to implement the plan at the objection of self-interested adult children.
Prior to my succession plan to exit as a professional fiduciary to become a consultant and advocate, I was appointed by many clients who I called “clients in waiting.” These were parents and individuals planning ahead who knew they could not rely on their children to responsibly provide care, single or never married individuals, and siblings who did not trust other siblings to do the right thing. I was appointed and at the time of need I stepped in to oversee care.
Estate planning must also include a succession plan for appointed family members who might pre-decease the client, become ill, or who may decline or be unable to serve at the time of need. This includes succession planning for professional fiduciaries who may change careers or retire.
Professional fiduciaries who are appointed must confirm that they have a succession plan. Situations have occurred where solo professionals have unexpectedly experienced changes in health or died, leaving no plan for the transition of their business. The same duty to create a succession plan applies to attorneys practicing solo or in small firms. The statement that the “cobbler has no shoes” is relevant in estate planning, elder law, probate, and fiduciary professions.
Mental Capacity, Alzheimer’s Disease or Dementia, Today and in the Future
An “elephant in the room” is initiating the uncomfortable discussion of a current or future potential diagnosis of dementia or Alzheimer’s Disease. The statistics for diagnosis are staggering. In 2018, the number of Americans diagnosed with Alzheimer’s disease is 5.7 million. By 2050, the number diagnosed will increase to 13.8 million. Alzheimer’s disease is the 6th leading cause of death (1).
Dementia, the broader term for Alzheimer’s Disease and related memory loss diagnoses, is a degenerative brain disease with no cure. Dementia is rare in adults younger than 60. But after age 60, dementia becomes increasingly common. While 7% of adults 60 and older have dementia, nearly 30% of those 85 and older do. The two most common causes of dementia are Alzheimer’s disease and vascular dementia.(2)
Attorneys with less experience in determining capacity or the ability to notice early signs of memory loss should seek the counsel of other attorneys or retain elder care consultants with expertise. To the untrained attorney and many other professionals including doctors, clients appear capable of managing their day to day affairs. Appointments with attorneys, financial planners, and medical professionals are the time when clients dress up and put the best foot forward. Appearances during brief periods of meeting time can be very deceiving. Meeting the same client in their home may provide a totally different perspective of daily ability.
What Information Do Estate Planning, Elder Law, and Probate Attorneys Use to Determine Capacity?
Evaluating mental capacity when creating an estate plan including the testamentary capacity to execute a will is different from evaluating mental capacity to enter into a contract. Evaluating mental capacity for guardianship or conservatorship is different from evaluating testamentary capacity.
Basic conversations with a client to support an attorney-client relationship or to determine diminished capacity occur as part of initial and ongoing communication and meetings. Asking the client questions to gauge mental capacity occurs in normal interactions. Questions may include the types and values of assets, evaluating the variability and consistency of responses, and determining if the client is able to reason and evaluate information.(3)
No detail or communication that may seem odd is unimportant. It is the little nagging questions that trouble or are ignored that become significant later. Being proactive today may avoid future challenges to estate plans if there is an unconfirmed diagnosis or signs that mental capacity may be in question. While attorneys may feel uncomfortable questioning the capacity of a client or resigning because of capacity issues, acting in an ethical manner is part of the attorney code of conduct.
Gaining permission to speak with family members and friends who know the individual may be an early path to confirming mental capacity if questions exist. The client may be uncomfortable agreeing if there have been family discussions or concern voiced about memory loss. This is a red flag. The client also may not want their family to know they are creating an estate plan.
An assessment by an elder care consultant may be helpful in determining concerns with functional capacity and literacy. Seniors and the elderly struggle with health and financial literacy that diminish the ability to make common healthcare and financial decisions—even in the absence of a diagnosis of cognitive impairment. Difficulty in these areas indicate the need for the appointment of a durable medical or financial power of attorney. Simple decisions like selecting health care providers, managing prescription drugs, financial budgeting, and health-promoting behaviors become difficult.
When significant concerns exist, a current primary care physician opinion that extends to a geriatric, neurology or neuropsychology examination is important to manage later document questions or diagnosis challenges. We don’t allow primary care physicians to treat cancer. We should not allow primary care physicians to intensively evaluate memory loss; they lack the expertise. Memory and cognitive specialist reports provide a rear window view of present circumstances. An example illustrating the importance of being proactive is a situation where I was medical power of attorney for a client. Due to concerns of questionable family interest (money) and reported emotional abuse, I initiated a formal neuropsychological evaluation about 8 months prior to a family petition for guardianship. The evaluation confirmed the client was incapacitated. The judge ruled that there was no need for a guardian due to the neuropsychological evaluation and presentation of estate planning documents dating back a decade in which the family member was never named. Testimony about witnessed abused also proved valuable.
Clients Diagnosed with Early Mild Cognitive Impairment: The Greater and Rarely Acknowledged Risk
Among the public, fear and dread exist about receiving a formal diagnosis of Alzheimer’s Disease. Many individuals acknowledge that they do not want to know if they have Alzheimer’s. Others choose to remain in denial of a diagnosis, especially if other family members have been diagnosed. A futile sense exists about the diagnosis as if, “well, what now?” Preferred ignorance and denial result in a lack of discussion with physicians about memory loss concerns. Physicians who might notice concerns fail to mention a cognitive evaluation unless the patient asks. A hesitancy to diagnose exists with an unstated physician-patient understanding of “don’t ask—don’t tell.”
Others diagnosed with dementia, Alzheimer’s Disease or another type of memory loss desire to take steps to remain as healthy and active as long as possible. A common frustration is the lack of direction by primary care physicians lacking expertise about the long-term effects of the memory loss or the importance of planning. Patients feel that these physicians have little guidance to offer. A common frustration is the feeling of being passed along with no direction but a wish from the physician of “good luck with that.”
A diagnosis of mild cognitive impairment falls within the gray area of experiencing some memory loss but not receiving a formal memory loss diagnosis. Research confirms that unless individuals specifically ask a primary care physician about diagnosing memory loss, 58% of remain undiagnosed. Most people with undiagnosed dementia live in their own homes.(4) With no one to express concern, these individuals live at home until some type of accident occurs to raise concern. In these situations, it is the police or county social services who raise concerns due to reports by concerned neighbors or vehicle accidents.
This undiagnosed population presents a risk for estate planning and probate attorneys. Approximately 15 percent to 20 percent of people age 65 or older have mild cognitive impairment.(5) Thirty-two percent of individuals with mild cognitive impairment develop Alzheimer’s dementia within 5 years’ follow-up.(6) Many clients diagnosed with mild cognitive impairment fail to mention this concern to estate planning, elder law or probate attorneys unless very direct questions are asked. What then happens years later when no discussion occurred and documents may not have been appropriately drafted?
The Importance of Collaboration
Families and professional fiduciaries are best served by experienced estate planning, elder care, and probate attorneys. Expensive litigation occurs when law firms on the periphery—with experience in family law, occasional experience in probate litigation, or one or two attorneys dabbling in estate planning—agree to represent a long-term client who asks for a favor. The same concern exists with the appointment of a guardian ad litem who may simply be on a list and have no experience in this specialized area of law.
In these situations, collaboration rarely occurs between the opposing attorneys to problem-solve and determine the cost-benefit of litigation to the client or estate. Mediation, if scheduled, is a futile effort. Appointed family members and professional fiduciaries who have acted in the best interests of family members are treated with disrespect and their character and ethics are harshly questioned.
I have been involved in litigation where self-interested staff working for assisted living communities, care agencies, and healthcare professionals have crossed professional boundaries to support litigation. This mis-placed duty to advocate results from a relationship with a client that has become personal. These individuals feel a sense of “ownership” of the client and dislike anyone, including guardians or powers of attorney, who threaten to move the client, who disagree with the desires of the client, or who disagree with the questioning of their professional opinions.
This extension of ancillary companies and individuals who become “interested” in the welfare and estates of clients will continue to grow exponentially due to the aging population. Law firms more interested in fees than balancing the expectations and desires of dysfunctional family relationships will continue to accept cases for which they have little experience. Add these concerns to the shortage of public funding for dedicated judges and magistrates to manage probate dockets and county governments too small to fund such an expense.
The solution is collaboration and education with elder care consultants and legal professionals serving in the areas of estate planning, elder law, and probate. Those more experienced must support the less experienced. New entrants must seek to collaborate with experienced professionals. Proactive plans that accommodate for unexpected but possible situations are important for clients currently able to act for themselves who may become incapacitated in their later years.
Elder care professionals and attorneys should act for these clients as if we were planning for ourselves. Someday, we too, will be at the mercy of a variety of elder care professionals and a legal system that we hope will act in our best interests
1. Alzheimer’s Association Report, “2018 Alzheimer’s Disease Facts and Figures,” Alzheimer’s & Dementia, 14 (2018) 367-429.
2. Aging and Health. Aging and Health A to Z. http://www.healthinaging.org/aging-and-health-a-to-z/topic:dementia/info:unique-to-older-adults/ accessed 9/2/18.
3. Gerard Defenbaugh and David W. Kirch. “Opinions for Trust and Estate and Elder Law Practitioners,” Colorado Lawyer, Vol 47, Number 7, 48-51.
4. G.M. Savva and A. Arthur. “Who has undiagnosed dementia? A cross-sectional analysis of participants in the Aging, Demographics and Memory Study,” Age and Ageing 2015:44: 642-647 doi 10.103=93/ageing/afv020
5. Roberts R, Knopman DS. Classification and epidemiology of MCI. Clin Geriatr Med 2013; 29:753–72.
6. A. Ward, S. Tardiff, C. Dye and H.M. Arrighi. Rate of conversion from prodromal Alzheimer’s disease to Alzheimer’s dementia: A systematic review of the literature. Dement Geriatr Cogn Disord Extra 2013; 3:320–32.
Pamela D. Wilson, MS, BS/BA, CG, CSA, a National Certified Guardian and Certified Senior Advisor, is a caregiving and elder care expert, advocate, and speaker. Pamela offers family caregivers programming and support to navigate the challenges of providing, navigating, and planning for care. She guides professionals practicing in estate planning, elder and probate law, and financial planning to create plans to address unexpected concerns identified in her past role as a professional fiduciary. Healthcare professionals are supported by Pamela’s expertise to increase responsiveness and sensitivity to the extensive range of care challenges faced by care recipients and caregivers.