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Tuesday, April 3, 2012

Wrong legal information makes it harder to help aging parents

Urban myths, re-told anecdotes and fictionalized TV lawyers - they are all out there and all help add to the confusion of what is really the law and what is not. One of the main reasons I write this blog is that I know how many of you have "information" that you question. You just want to ask someone if it's true or not. I encourage everyone to keep asking questions.

There are people whose lives are made more difficult and more frustrating because they have wrong information. Take this particular reader - let's call him John - as an example. The following is part of a note I received from John:

"I can't take my parents to a lawyer to write their Powers of Attorney or wills as both are indisposed at home, and dad can't see to sign and also has slight dementia (not certified by a doctor)."

This is someone who has their hands full, in a situation that many of you probably recognize. But things are really not as bad as John thinks. Let's look at it a bit more closely, starting with John's mother.

Why can't his mother sign new documents? The only reason given here is that she is indisposed at home. That's not too unusual; many seniors have mobility issues. The comment about dementia doesn't seem to apply to her, so as far as I can tell the only issue is that she is housebound. That's easily dealt with; get a lawyer to go to her. And before you scoff at the idea, I can tell you that almost every Wills lawyer I know, including me, makes house calls. We want to make sure that seniors get the documents they need even if they can't make it to our office.

The real issue with John's mother is that she is being treated as an adjunct to John's father. John believes his father has some serious impediments to signing a will, and his mother is being swept along with that because John is thinking of his parents as a unit rather than two individuals in different states of health.

Now let's look at John's father. The first hurdle appears to be blindness. In reality, this is not a hurdle at all. Blind people sign wills every day. This is one of those nuggets of misinformation I was talking about. Every lawyer with some experience in wills can deal with this situation so if yours cannot, get a different lawyer.

The next hurdle is dementia. Of course John is right that dementia can be a serious issue, as a loss of mental capacity prevents a person from signing a will. However, John has mentioned "slight" dementia. Things have not yet progressed to the point where a doctor has been consulted, so this is apparently John's own diagnosis. While John may notice forgetful or unusual behaviour in his father, these changes may not be enough to prevent his father from signing a will. Again, John is not sure of the law as it deals with dementia and making wills.

Mental capacity doesn't have to be perfect. If it did, none of us would have a will. John's father doesn't have to be exactly the way he was when he was younger. He only has to understand the nature of a will and understand the choices he needs to make. While I understand John's anxiety on this point, I wouldn't be so quick to assume that his father lacks mental capacity. All wills lawyers are trained to determine whether any person giving them instructions has the capacity to do so and in this case I'd let the lawyer do exactly that.

I hope that John and others in his situation will understand from reading this post that it's not a good idea to rely on assumptions and on information from unreliable sources. Keep asking questions.

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