As my father’s Guardian, can I update his Estate Planning? A guardian or conservator cannot execute a will for their protected person. The right to make a will is personal to the person and cannot be exercised by another. However, the conservator does have limited rights to create or modify trusts, change beneficiary designations, open and close accounts and other estate planning tasks. These are done after a petition to the court for permission and, generally, notice to persons affected by the changes.
Some people think that a diagnosis of Alzheimer’s makes a person incompetent and not able to execute documents. Others think that a diagnosis has no effect because the patient is able to walk, talk and participate in life. The correct answer is that the determining factor is that difficult concept called ‘capacity.’
When a person shows symptoms or has a diagnosis of Alzheimer’s, he or she does not lose their civil rights or capacity. They may retain an attorney and execute a will or trust, to change insurance beneficiaries, or to change names on accounts and do the other things that add up to an estate plan. However, if the condition is sufficiently advanced, they will have lost the ability to execute the documents, or the documents they execute may be challenged for lack of capacity.
The level of capacity necessary to execute a will or trust has been established for a number of years. The individual must know that that they are executing documents that devolve assets, the nature and extent of what they own, their kin and where they stand in relation, and be able to understand the document. Further, there must also be no fraud, undue influence or error. If this were so simple, there would be no fights over inheritances. As a person progresses through Alzheimer’s or other dementias, the ability to meet the requisite capacity diminishes and is eventually extinguished.
Note that a person who is under guardianship, in Oregon, may still make a will. The problem, of course, is that they may not have the capacity, or that an attorney who is asked to prepare the will may be reluctant to prepare documents for a person with sufficient, but barely so, capacity.
Capacity is a very tricky concept to grasp. An experienced estate planning attorney can help you to understand when a person can or can’t make changes to their planning documents. Contact the Estate Planning attorneys with the Law Offices of Nay & Friedenberg in Portland, Oregon at (503) 245-0894 to set an appointment.