QUESTION

Mom has Dimentia and made changes to her Trust

Asked on Oct 24th, 2012 on Elder Law - Florida
More details to this question:
Mom, 98 has been displaying signs of dimentia, memory, accusing me, her primary care giver of stealing from her, cheating her, when I've been there for her since Dad died 10 years ago. I've written her dr to advise of her behavior but he only increased her meds. Do I have any recourse since the changes were made while she has signs of dimentia? Do I have any recourse?
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2 ANSWERS

Estate Planning Attorney serving Jacksonville, FL at The Coleman Law Firm, PLLC
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You have not indicated the nature of the changes that were made by your mother, or provided any information regarding your mother's estate, so it is difficult to assess whether you have any recourse. Generally speaking, legal capacity to sign a will or trust is different than dementia or other challenges faced by the elderly.  Legal capacity is the ability to understand the value and nature of one's assets, who are his or her natural heirs, and understanding that they are signing a document that provides for the disposition of their assets.  Even someone with dementia or Alzheimer's disease can have moments of lucidness that provide legal capacity, unless that person has been declared legally incompetent by a judge, after an evidentiary hearing. If your mother signed the documents during a lucid moment, had an understanding of the nature and value of her assets at the time of signing, and understood that she was disposing of her assets, then her changes are most likely legally effective, and you may not have any recourse. Obviously, one of the most significant issues is how do you prove that she had a lucid moment and legal capacity, or whether she was unable to understand what she was doing.  There is a presumption that she knew what she was doing when she signed the documents, if they are properly witnessed and notarized.  You can overcome that resumption by show that she suffered from dementia, and any other challenges she may have had to live with at the time. If you believe she did not have the legal capacity to sign the documents, then  you should immediately contact an estate planning/elder law/probate lawyer to help you determine what is the most appropriate method of challenging the new documents.  The best option may be an adversarial proceeding in the probate court to have the documents ruled as invalid based on the lack of legal capacity at the time she signed the documents.  Or you may want to immediately pursue legal action to void the new documents, or you may want to wait until your mother has passed and then challenge the administration of your mother's probate or trust estate, to claim the subject property belongs to you, or that you have a more beneficial interest in your mother's estate. It's a tough situation and my best wishes on working through it. Randy Coleman
Answered on Oct 25th, 2012 at 1:07 PM

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Joseph Pippen
The answer on the question depends on if you can prove that she did not have legal capacity at the time she signed documents. This is a difficult task unless the Doctor is willing to give you a written statement now.
Answered on Oct 25th, 2012 at 9:02 AM

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