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Wednesday, July 21, 2010

Should a caregiver be in the room when an elderly person signs a Will?

When an elderly person is discussing his or her estate planning with a lawyer, a caregiver who accompanied the elderly person to the meeting is usually asked to leave the room. In my experience, some caregivers will become upset when this happens. Many take it as a personal insult, as they know the lawyer wants to talk to the senior alone. They feel as if they are being treated as if they were untrustworthy.

Caregivers should understand that when the lawyer asks the caregiver to leave the room, the lawyer is actually making the senior's Will stronger. If it ever came down to a challenge to the Will, the lawyer would be able to say that nobody forced the senior to make certain provisions, or put words in the senior's mouth, or in any other way interfered with the senior's independence and free will.

The lawyer is not accusing the caregiver of doing that. The lawyer is simply making sure that nobody will ever be able to accuse the caregiver of doing that.

It wouldn't be at all unusual for an elderly person to make a gift to the caregiver in the Will, as a result of affection for the caregiver and gratitude for the care received. If the caregiver is present when the senior tells the lawyer about this gift, it may look as if the caregiver suggested the gift. Even if the caregiver had nothing to do with it, you have to admit the optics aren't good. It isn't the lawyer you have to worry about; it's the family members who are upset when they find out that some of the estate is going to the caregiver.

When the Wills of seniors are contested, it is quite often on the basis that the senior was coerced or influenced into making a Will he or she wouldn't have made otherwise. If the caregiver was not in the room when the lawyer and the senior discussed the gift, it takes a lot of the steam out of that attack.

The other problem with a caregiver being present is that if the senior is having trouble communicating due to the effects of illness or a stroke or disability, the caregiver tends to answer the questions for the senior. This is generally only intended as a kindness. However, the lawyer must be confident that the senior has mental capacity to understand what's going on, and that judgment can't be made if someone else is answering the questions.

Experienced Wills lawyers will do all that they can to make an individual's Will as bulletproof as possible. This includes recognizing situations which can be used by other parties to attack the Will. Excluding the caregiver from the room is just one example of the ways in which lawyers ensure that the best methods possible were used in the preparation of the documents.

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