Elder Law Attorney Visit
With the change in mom’s venue, and to keep it from becoming an emergency, I used my state’s Academy of Elder Law Attorney’ website to find someone to consult with. There were a few requirements in my vetting process: The practice had to have an online presence to allow me to learn more about them. They had to practice in my county and be within a reasonable distance from my home. They had to be aligned with my personality, meaning attorneys whose websites were madly agressive in telling me what I Had to do before hearing my story, or didn’t tell me enough about their practice were not considered.
I met with a partner of the firm I chose today. We discussed the following:
In our state, guardianship does not let me ‘tell’ my mother where she must live. I was surprised by this. It would prevent her from entering into contracts or giving to charity, and would give me absolute control over her funds. With my DPOA I have tremendous control over her funds/assets. About the only thing I can’t do is set up trusts with her funds. The attorney said dealing with the bookkeeping scrutiny under a guardianship when you don’t really need it, is never worth it. He also said the court’s guardian ad litum would look at our situation and ask, “Why do you need guardianship?”
After lots of questions about how my father inherited from his father, how those funds were held between my mom and dad, and now between me and my mom, plus looking at the affidavits that slid my father’s death certificate into the chain of title on both houses, the attorney says we do not need to probate dad’s estate (Hallelujah). In our state (community property) a marriage of their length, with everything being held jointly, in one way or another, is enough to protect mom should anyone question mom’s inheritance. The attorney also said they use the same affidavit in the same situation, and title companies accept it without question.
Can mom change her will:
There is a low threshold to meet for someone with dementia to change their will. They must exhibit A) Testimentary Capacity: “The burden of proving testamentary capacity rests upon the proponent of the Will, who must demonstrate that the decedent understood the consequences of executing the Will, knew the nature and extent of the property being disposed of and knew the persons who were the natural objects of her bounty and her relationship to them. (LexisNexis).” B) know more or less what they own, and C) have a coherent distribution plan. Mom has mentioned changing her will once. While Testimentary Capacity could be a hard argument, my mother no longer ‘presents well’ after about 5 minutes, and I may have enough documentation, with more on the way, to prove that she indeed does not have Testimentary capacity. She doesn’t know the extent of her property, which means she could not have a coherent distribution plan. She also would be unable to generate required data for a will, such as my half sister’s birth dates. I am in contact with the executive director of the very local charity mom spoke of leaving the bulk of her estate to. He was very sympathetic, having known both of my parents. Knowing this, and that should mom actually try to follow through, she’d ask my daughter for the number of an attorney, my anxiety over this subject has come down remarkably.
Can I move mom’s money to protect her from herself?
In a word, yes. Mom could call one of her banks and instruct them to cut a check to the very local charity in question… The attorney said I can move money to another financial institution (that mom doesn’t know about) as long as the funds were held the same way they are now.
Can I reimburse myself for the 10-20 hours a week I spend attending to mom’s affairs?
Also yes. He said I would need to declare any such income on my tax return, and reminded me inheritance is tax free. I’m going to employ some third parties to take care of certain things. I will pack art, others can pack bathrooms & the kitchen, paint, clean etc…