News & Analysis as of

Mental Capacity

Walkers

Hope for the best, but prepare for the worst: Wealth planning for mental incapacity

Walkers on

It’s always wise to hope for the best but plan for the worst, and, with global rates of dementia on the increase, planning for incapacity should be part of everyone's wealth and succession strategy. Where the assets held...more

Charles E. Rounds, Jr. - Suffolk University...

May a Mentally Incapacitated Trustee Be Held Personally Liable for His Breaches of Trust?

Assume sole trustee of an irrevocable discretionary trust for benefit of deceased settlor’s descendants living from time to time suffers a sudden unforeseen mental disability that causes trustee to imprudently administer the...more

Stark & Stark

Why Having a Special Needs Child Sign a Power of Attorney Is Not a Good Idea

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In a previous blog, I discussed the process of a parent obtaining a guardianship for their special needs child. This blog discusses why it is not a good idea to try to shortcut this process and to simply have your child sign...more

Hinshaw & Culbertson - Lawyers for the...

Do Illinois Attorneys Have a Duty to Assess Their Client's Mental Competence?

In a legal malpractice action arising out of revisions to a client's estate plan, the appellate court considered whether an attorney has a duty to evaluate a client's mental capacity and, if so, whether the plaintiff alleged...more

Warner Norcross + Judd

Did Woman Have Sufficient Mental Capacity to Deed One-Half of Her Real Property to Boyfriend?

Warner Norcross + Judd on

The Michigan Court of Appeals recently considered a case presenting the question of whether Anna Brudek had sufficient mental capacity to execute a deed conveying one-half of her real property to her boyfriend, Alvin Rice. In...more

Winstead PC

Court Reversed Summary Judgment And Held That There Was A Fact Issue On Whether The Testator Had Mental Capacity To Execute A Will

Winstead PC on

In Castello v. Ex’r of the Est. of Castello, the decedent died leaving a will that left his property to his wife “for life” and then to his three children by a prior marriage. No 03-22-00012-CV 2023 Tex. App. LEXIS 4454 (Tex....more

Winstead PC

Court Affirms Order Voiding Marriage Between Decedent And His Niece

Winstead PC on

In Allebach v. Gollub, the decedent had three children, and after he died, one of them filed a will contest and a claim that the decedent’s marriage to his second wife was void. No. 14-22-00272-CV, 2023 Tex. App. LEXIS 3469...more

Downey Brand LLP

Dementia Causes Uneasy Balance Between Freedom and Protection

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Independence Day invites reflection on another form of freedom. How do we respect the autonomy of California’s elders who experience progressive forms of dementia while protecting them from potential abuse and other harm?...more

Winstead PC

Court Affirms Order Holding That Party Had Mental Capacity To Execute Contracts Regarding The Sale Of Real Property

Winstead PC on

In In re Estate of Montemayor, a buyer sued a seller regarding five real estate contracts. No. 09-21-00054-CV, 2023 Tex. App. LEXIS 1174 (Tex. App.—Beaumont May 13, 2022, no pet. history). ...more

Downey Brand LLP

Alzheimer’s Association Offers Helpful Roadmap on Dementia

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Dementia casts a long shadow in California trust and estate litigation. Contestants claim that an elder with dementia lacked sufficient mental capacity to make an estate planning change, or that dementia left the elder highly...more

Greenberg Glusker LLP

[Webinar] Aging Gracefully: Recognizing Competence Issues In the Practice of Law - January 25th, 10:00 am - 11:00 am PST

Greenberg Glusker LLP on

This CLE program will explore competence issues in the context of the aging attorney population. While mental and physical issues impacting the elderly population are very common, few CLE programs discuss them in the context...more

Woodruff Sawyer

Declining Mental Capacity and How It Affects Estate Plans

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What do Glen Campbell, Rosa Parks, Gene Wilder, Aaron Spelling, Etta James, and Peter Falk have in common? They are all celebrities whose Alzheimer’s disease impacted their estate planning. Current and historic headlines are...more

Sands Anderson PC

Don’t Pay Lawyers Unnecessarily When You Die

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It may seem odd to hear a lawyer say this, but much of my work as an estate planner is helping people avoid future entanglements with lawyers. I regularly help my estate planning clients identify places where litigation or...more

Downey Brand LLP

Late Trust Contest May Trigger Enforcement of No Contest Clause

Downey Brand LLP on

No contest clauses generally are not enforceable against beneficiaries of California trusts when there is “probable cause” to challenge the trust instrument. Yet the probable cause safe harbor may disappear if the contest...more

Winstead PC

Court Affirmed Admitting A Codicil To Probate As The Testator Had Mental Capacity And Was Not Unduly Influenced And Discussed...

Winstead PC on

In Dillon v. King, one sister contested their father’s will and codicil and also asserted other claims against her sister. No. 05-20-00215-CV, 2022 Tex. App. LEXIS 2991 (Tex. App.—Dallas May 4, 2022, no pet. history)....more

Rivkin Radler LLP

[Webinar] Lunch & Learn Series: Addressing Patient Capacity Issues - June 16th, 12:00 pm - 1:00 pm ET

Rivkin Radler LLP on

Please join us for the June lunch and learn, presented by Partners Frank Izzo and Wendy Sheinberg. The program will discuss: - Article 9 (mental health) - The FHCDA - Article 81 (guardianships) - HIPAA issues...more

Downey Brand LLP

RCFEs Can’t Get Out of the Rain – California Court Finds Another Arbitration Agreement Unenforceable

Downey Brand LLP on

Another day, another decision by the California Court of Appeal making it more difficult for residential care facilities for the elderly (“RCFEs”) to enforce their arbitration agreements. Upon admission to virtually any...more

Hinshaw & Culbertson - Lawyers' Lawyer...

Legal Ethics Trend – Representing Clients with Diminished Capacity

The #FreeBritney movement catapulted the ethical challenges of conservatorships into the public eye. Pop icon Britney Spears, whose father was appointed as her conservator in 2008, stands at the center of this cultural...more

Winstead PC

Court Affirmed Admission Of Will To Probate Over Challenges To Testimony Based On Lack Of Medical Training By A Non-Medical...

Winstead PC on

In In re Estate of Aldrete, a decedent’s son from a first marriage had a 1981 will admitted to probate, which left real property to him. No. 04-20-00426-CV, 2022 Tex. App. LEXIS 322 (Tex. App.—San Antonio January 19, 2022, no...more

Downey Brand LLP

Are an Estate Planner’s Notes Protected by the Attorney Work Product Doctrine?

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California law is surprisingly unclear as to whether the notes of an estate planning attorney are protected from discovery by the attorney work product doctrine. This can become a big issue in a will or trust contest when the...more

Downey Brand LLP

Final Ethics Opinion Guides Lawyers on Clients with Diminished Capacity

Downey Brand LLP on

We wrote last July about a draft California ethics opinion regarding clients who may have diminished mental capacity. After receiving public comment, the State Bar’s Standing Committee on Professional Responsibility and...more

JAMS

[PODCAST] JAMS Neutrals on the Evolution of Trusts and Estates Disputes and Considerations for Selecting the Right Mediator

JAMS on

In this podcast, JAMS neutrals Hon. Glen Reiser (Ret.) and Lisbeth Bulmash, Esq., discuss how the pandemic and a shifting landscape around wealth transfers is fueling increased trusts and estates disputes. They weigh in on...more

Downey Brand LLP

Disney Grandson Languishes in the “Unhappiest Place on Earth”

Downey Brand LLP on

While Disneyland may be the “Happiest Place on Earth,” a California probate court may be the opposite for a Disney heir, mused the U.S. Court of Appeals in Lund v. Cowan (9th Cir. 2021) ___ F.3d ___. Bradford Lund, a 50...more

Downey Brand LLP

Will California SB 315 Improve Revocable Transfer on Death Deeds?

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The thrifty do-it-yourselfers among us might jump at the opportunity to transfer their family home to their kids while avoiding probate and the expense of creating a trust. Revocable Transfer on Death Deeds, or RTODDs, have...more

Downey Brand LLP

Ethics Opinion Guides Lawyers on Counseling Clients with Diminished Capacity

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What are the ethical obligations of a California lawyer for a client with diminished mental capacity? The ethics committee of the State Bar of California answers this key question in draft Formal Opinion No. 13-0002, with...more

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