When Is Someone Legally Incompetent?
What does it mean to have someone declared legally incompetent? And how does that happen, anyway? The concept of competence in the law is surprisingly confusing. Most people think they know how to judge that someone would be legally incompetent. Very often they are wrong. Incompetent, or incapacitated? First we have to deal with language. […]
Undue Influence and Limited Capacity Do Not Necessarily Justify Conservatorship
OCTOBER 31, 2016 VOLUME 23 NUMBER 41 In our legal practice, we frequently deal with individuals with limited capacity. Sometimes we speak of them being “incapacitated” or “incompetent.” Sometimes they are “disabled,” or qualify as “vulnerable adults,” or are subject to “undue influence.” But each of those terms means something specific, and some variations even […]
Mediation in Guardianship Proceeding Can Be Effective, But Raises Questions
FEBRUARY 8, 2016 VOLUME 23 NUMBER 6 Sometimes court proceedings are necessary in order to resolve differences of opinion — but almost everyone recognizes that it is good to seek resolution by a simple agreement when the parties can resolve their differences outside court. Mediation, for instance, is a great way to resolve many legal […]
Nursing Home Resident’s Lawyer Did Nothing Wrong
FEBRUARY 23, 2015 VOLUME 22 NUMBER 8 From time to time we report on cases in which lawyers are disciplined for behavior involving clients who are older or have disabilities. We do that not out of any sense of schadenfreude, but because the behavior described in the disciplinary proceeding is illustrative of an important limitation […]
Even Lawyers Can Have Trouble Recognizing Undue Influence
OCTOBER 20, 2014 VOLUME 21 NUMBER 38 We often say that experienced lawyers can be pretty good at judging the competence of a client to make a will, sign a power of attorney or execute other documents. We (collectively) probably make better witnesses on those questions than even the doctors and medical staff attending to […]
Home Refinance Can Foul Up Estate Planning
MAY 19, 2014 VOLUME 21 NUMBER 18 When our clients consider creating a revocable living trust, we usually explain that there are several benefits to that estate planning device. Chief among those benefits for most people: avoidance of probate on the death of the client. For married couples, there is usually no probate required on […]
Court Annuls Marriage After Death of “Spouse”
JANUARY 20, 2014 VOLUME 21 NUMBER 3 Cynthia Madsen (not her real name) was, according to her doctor, already showing signs of dementia in 2007. In fact, her doctor wrote that she was not able to manage her own financial affairs. By mid-2009, her condition had worsened; her doctor wrote that she could not make […]
Can a Person with Dementia Sign Legal Documents? (Part 2)
MARCH 4, 2013 VOLUME 20 NUMBER 9 Last week we posed the question, and then mostly wrote about competence (or capacity) to sign a will. We promised to explain more about the level of competence required to sign other documents. So let us now tackle that concept. A person with a diagnosis of dementia may […]
Can a Person With Dementia Sign Legal Documents?
FEBRUARY 25, 2013 VOLUME 20 NUMBER 8 Let’s get the answer to the question out of the way first, and then we can deal with more nuance. Yes, a person with dementia may be able to sign legal documents. The inability to sign documents (what is usually known in the law as “incompetence” or, sometimes, […]
Some Thoughts About Guardianship and Conservatorship in Arizona
NOVEMBER 14, 2011 VOLUME 18 NUMBER 39 Let’s talk about guardianship and conservatorship proceedings. Before we do, though, let’s remember a couple of important principles: We only know about Arizona guardianship or conservatorship. Well, OK — we might know a thing or two about other states’ rules and procedures — but we only practice in […]
Trust Created by Spouse Using Power of Attorney is Validated
JUNE 14 , 2010 VOLUME 17, NUMBER 19 Suppose for a moment that you are trying to get your financial affairs in order. You have been married for many years, and your spouse is gradually losing the capacity to make financial or planning decisions. You are pretty sure you know what your spouse would want, […]
Video by Exploiters Leads to Witness Tampering Conviction
DECEMBER 21 , 2009 VOLUME 16, NUMBER 65 Washington State resident Shirley Crawford, then age 80, had a difficult problem to deal with. She had fallen in 2001 and was hospitalized. Her only child, Anne, was severely mentally disabled and lived in Ms. Crawford’s home. Ms. Crawford needed someone to help her with management of […]
