A Short Conversation Explaining Undue Influence in Estate Planning

 

Some Good Information on Undue Influence

Transcript:

(Editor’s note: Brian is Clear Counsel’s Communications Director. His prompts represent a conglomeration of inquiries submitted. If you have you have a question you would like answered in an upcoming video, email the inquiry to brian@clearcounsel.com)

Hello. I’m Jonathan Barlow. I’m a probate attorney here at Clear Counsel Law Group. An important question that I’m often asked about is undue influence. It frequently comes up both in when we’re preparing wills and trusts for people, but also often comes up after a person passes away.

What is undue influence? Undue influence is when a person who is in a position of authority over another person, who’s called the vulnerable person, exerts influence or control over that other person to the point that the vulnerable person acts against his free will, or he does something that he otherwise normally wouldn’t have done. Frequently we see that in the context of the vulnerable person creating a will or a trust where he leaves an unnatural gift to that other person who had been exerting influence over him. It’s a question that often comes up from people who call in or write to our law firm.

In fact, I think Brian has some questions about undue influence right now.

 

Brian: You just mentioned an unnatural gift. Will you explain what that means?

 

Jonathan: Yes. An unnatural gift would be something that you wouldn’t expect to see. For example, if we have Mom; Mom has three kids; a natural disposition of Mom’s estate would be to give each child one-third. A third, a third, a third. If Mom’s passed away, and suddenly a will pops up where 50% or 100% of her estate goes to the caretaker who had been coming in to help her with her medications, and her finances, and things like that, and the kids are cut out, or the kids’ amounts are shrunk down to some degree, that would be unnatural. That’s something that we wouldn’t normally see happen. It certainly can happen, if Mom wants to, but it raises questions of why did Mom do that. Did she do that because she was exercising her own free will for the caretaker, or did the caretaker exert some type of influence, or undue influence, over Mom in creating that will? Did that kind of answer that question a little bit?

 

Brian: It did, but I am curious if it is possible at all to give an unnatural gift.

 

Jonathan: Good question. Yes, that’s a good question. Let’s say the will did pop up after Mom’s passed away, and we have that situation where the caretaker gets 50%, and the other three kids, now instead of splitting the full, they’re splitting the other 50% so they get a sixth each.

Yes. Mom absolutely can do that, an sometimes Mom wants to do that because she’s grateful for what the caretaker did for her. Maybe all three kids abandoned her; they haven’t been out to visit Mom for years, and Mom felt bad about that; she was grateful for what the caretaker did, and so she left a gift for the caretaker. Mom can do that, no doubt.

It’s just a question of why did Mom do that. Did Mom do that because she was exercising her own free will in doing so, or did she do so because the caretaker had been giving her subtle suggestions? “Hey, Mom, let’s go take you over to the attorney’s office; I want you to sign a will. Don’t you think it would be a good idea to decide what you’re doing with your house? You know I’m living on my own, and I don’t have a house.” Suggestions like this could indicate some type of improper influence by the caretaker.

It’s just a question of why did Mom do that: Did Mom do that of her own free will, or because the caretaker was influencing her to do so?

Anything else, Brian, you think about this question that’s important?

 

Brian: I’m confused. Can just a caretaker exert undue influence, or can someone else, as well?

 

Jonathan: That’s actually an excellent question, and it often comes up. The type of relationships that we watch for to see whether an undue influence is occurring, it’s not confined only to a caretaker situation. That’s a common situation because that’s someone usually outside of the family. However, it’s really any person who is in a position of authority or control over that other individual. Less frequently, it could possibly even be a spouse. That would be pretty unusual, but you could see a spouse improperly influencing their spouse to do something. More common, though, would be a child situation where a child may exert some type of improper influence over their mother or their father. For instance, a lot of times we see here in Las Vegas where one child lives here, Mom lives here, and the other kids live in the other parts of the country; so that one child has a lot more access to Mom. If we see Mom making larger gifts through the will, or otherwise, to this one child, we certainly question why is she doing that. Is that because that one child has access, and is exerting undue influence?

We typically would see someone like a healthcare provider, like a nurse or someone like that, helping in the house; it could be a friend down the street who is fulfilling the role of caretaker. It could be a spouse. That would be pretty unusual, but it could be a spouse, and it could often be a child who has access and control over her parent.

The most important thing in this analysis, and thinking about undue influence, is simply to determine did the vulnerable person act of his own free will, or did he do this thing, giving a gift to somebody else, because that person exerted improper, undue influence, or control over him, suggesting to him in ways that essentially destroyed his free will. That’s the big question in undue influence, whether that person acted under his own free will, or not.

We have some excellent blog entries about this on our website, ClearCounsel.com.

Myself and other attorneys here have blogged about undue influence, a very informative blog post. We encourage you to go read those blog posts at ClearCounsel.com for more information.

 

How a Personal Representative is Assigned to Your Estate

 

Who is the Personal Representative of My Estate?

Transcript:

Hi, my name is Jordan Flake. I’m a managing partner at Clear Counsel Law Group. One question we get a lot in out estate planning practice is, how do I know who’s going to take care of my stuff, after I pass away? To put the question in more legal terms, how do I know who is going to be the personal representative, at the time of my passing? You really have 2 choices. First choice is, you decide, second choice is, the state decides.

Under the first choice, you can decide whoever you want. You can list them in your will, to be your executor, or if you use a trust, you would appoint them as your trustee, in your trust. That can be anyone, and the court will honor your wishes. Sometimes, there could be limitations on that, in terms of, whether or not this person is maybe in jail, or a felon, or whether or not the appointment was obtained through their undue influence. By and large, you can make that decision, and you should make that decision, because the alternative is number 2, which is the state decides.

That’s not as horrible as it might seem, because there are laws in place that tend to try to replicate our desires. For example, I’m married, and if I passed away without creating an estate plan, my wife would have authority to serve. Well, even with my estate plan, my wife has authority to serve. You can see how the state laws try to do what’s reasonable under the circumstances, and appoint people close to you.

However, we deal with a lot of situations where there’s a mother who passes away, who has been estranged from, for example, her daughter, for years, and wants her daughter to have nothing to do with her. The daughter has basically abandoned the mother, and yet, because the mother didn’t do valid and proper estate planning, the daughter, actually, can be appointed to serve, under the statutes, because the mother didn’t take that initiative.

When you think about this question, who’s going to be appointed, who’s going to be responsible for your estate after you pass away? I’d really encourage you to come see us for a consultation, so that we can make sure that the person you want serves in that capacity, rather than just what the statutes have happened in that situation. Come see us at Clear Counsel Law Group, and we’ll help you out with this issue.

When is a Will Preferable to a Trust?

 

When are you better off with a will or trust?

Transcript:

Hi, my name is Jordan Flake. I am an attorney. I am also the managing partner of Clear Counsel Law Group. One question that we end up getting a lot in consultations is, “Is there ever a time that a will is preferable to a revocable living trust?” I know that out there, you hear a lot about a trust and how important it is. You hear your friends talk about it. Maybe you have a trust.

Probably the main difference between a will and a trust in terms of when will it will ever be more preferable is a simply a question of cost. It’s almost always in every example that I can think of, it’s going to be more costly in terms of attorney’s fees to set up a trust than it is to do a will. Now that being said, don’t let cost deter you from setting up a trust, because a lot of times especially if you have real property, if you have minor children, if you have significant assets, then the trust is a much better way to go.

I’m thinking of a client of ours, Clyde. We’ll call him Clyde, Clyde the Client. Basically, he just lived in an apartment. He lived on his social security. He didn’t really have any assets, but he had a stamp collection or whatever any other items of personal property. In that situation, we didn’t want to charge him and put him through the additional process of creating an entire trust. There really wasn’t anything that he was trying to pass at that time in his death that would necessitate a trust.

We just advised him to do a will because really all he had were some items of personal property that he would pass. I would say that’s one scenario where a will could be preferable to a trust. Again, I would reemphasize, don’t let the difference in cost dissuade you from getting the right legal instrument for your situation. Furthermore, at Clear Counsel Law Group, we’re very, very competitive with the marketplace in terms of making sure that you get an outstanding product at a very, very competitive rate.

Even if you do need a trust, we can assist you with that. We can also be flexible in terms of payments and things of that nature. If you think you might need a trust or a will, or if you’d like to have your state plan reviewed, please set up a consultation with me. I’ll do a complementary consultation in our office. I look forward to seeing you.

Be Careful Using Online Forms for Your Estate Planning

 

Why using online forms for your estate plan makes very little sense

Transcript:

Hi. I’m Jordan Flake. I’m an attorney with Clear Counsel Law Group. I do a lot of estate planning, and one really popular question that we get is, “Mr. Flake, we could do this a lot cheaper by going online, and downloading legal forms, and just using those instead of hiring an attorney.” Oftentimes when I confront this issue, I will jokingly respond that the online forms for estate planning are actually really good, because if you’re lost in the wilderness you can use them to start a fire, you can use them for making paper airplanes. They’re not entirely without their use. That being said, I would still say as an estate planning attorney that online forms are better than nothing. If that’s all you want to do, and that’s all the whole level of estate planning that you want, more power to you.

In our estate planning practice we help people estate plan, but we also resolve what I would call estate planning disputes after people pass away. We look at wills, and trusts that are heavily contested. Of the wills, and trusts, and estate planning documents that are heavily contested I can tell you that the majority of those have been because they were not lawyer drafted. In other words, I would say seven or eight times out of ten, the estate plan documents that are in dispute were drafted by maybe a financial advisor, maybe by the deceased individual themselves, maybe they were pulled offline, or purchased at a bookstore and filled out. The real question that you need to ask yourself is, “Are my assets enough, and is everything I’ve accumulated enough, and is my interest in making sure things happen smoothly enough to warrant the expense of hiring an attorney to correctly prepare my estate planning documents?” Most of the time I feel if you sincerely ask yourself that question you’ll realize, “Yeah, absolutely. This is worth getting right.”

Now the online forms are not always going to be wrong. There’s a lot of times that I’m sure it works out just fine. You shouldn’t gamble with something as big as all of the assets that you’ve accumulated. You shouldn’t gamble with what your wishes are. You shouldn’t gamble with whether or not these documents are actually valid and enforceable. Especially when Clear Counsel Law Group has … We’ve really tried to be optimized to the point that we can be very inexpensive, and make estate planning very affordable for everyone. We offer a high quality product at the lower end of the marketplace in terms of cost. Under all circumstances I’m more than happy to sit down with you for a complimentary consultation, so that we can just give you our take on your estate planning options, and really then put the ball in your court just to decide what’s best for you. Love to have you give me a call, so we can help you out.

Why should my Estate Plan include a Pet Trust?

 

Why is a pet trust a good option for my estate plan?

Transcript:

Hi, my name is Jordan Flake. I’m an Attorney, I’m also a managing partner at Clear Counsel Law Group. A few weeks ago I was invited to be on a radio program, and the host of the radio program pulled out an article about a wealthy family who had left millions of dollars to just like two or three dogs, and maybe one or two horses that they had. The host was kind of baffled by this and said, “Is this a real thing? Do people actually do this and leave money to their pets?” He asked that question and my response to him and my response to you is, absolutely. When you think about your assets, anything that you want to spend your money on, it is your money, during your life and when you pass away.

What these individuals probably set up is colloquially known as a Pet Trust. A Pet Trust really isn’t a Pet Trust, there’s nothing really pet about it besides the beneficiaries are normally the clients pets. I guess they can differ a little bit from regular Trusts because the Trustee may not be responsible for the care of the pets. Often times the clients will list an individual who’s actually going to take care of the pets themselves. Then the Trustee will compensate this individual who’s taking care of the pets. It is totally possible, and it’s reasonable, and it doesn’t even register with me anymore as to whether it’s weird or strange or inappropriate or anything like that.

To be honest with you, we just consider it our job to take whatever you’re estate planning wishes are. If they are legally enforceable, if they don’t run a foul of any kind of laws, or ethics, then we simply put those into motion, and make sure that you have the documents, to make sure it happens exactly the way you want. So feel free to come see us and we’ll set your pets up with something great.

 

Make sure to subscribe to our YouTube channel! Thanks for watching.

Timeshare Rentals, probate, estate planning

Your Timeshare Trouble Will Not Die with You

Timeshares can be a source of endless fun and excitement. However, there is another side1)perhaps a bit nefarious of timeshares that cause significant anger and frustration. This can be said for timeshares while the owner is alive and even more so after s/he is deceased.

The complexity and frustration of transferring ownership in a timeshare after death depends on one simple factor, type of ownership.

Timeshares come in two different forms. A significant portion of the first category of timeshares are deeds. This would be similar to a home or condo. When the timeshare was purchased, a portion of the real property where the timeshare sits is deeded to the purchaser.

A smaller percentage of timeshares are in the second category, contractual right to use. For this type, there is not a deed or real property transfer. The owner of the timeshare has a contractual right to use the facility where the timeshare is located according to the time and dates specified in the contract.

Both types present different issues in transferring the interest in the property or the right to the property at the time of the owner’s life. I will first tell you a little more about each type of timeshare, then more importantly, how to avoid the costly probate process with timeshares.

 

Deeded Timeshares

In Nevada, if the timeshare is a deeded interest, then there must be a probate in Nevada in order to transfer the interest to the beneficiaries or heirs of the decedent. For example, if a Decedent was a resident of Ohio and passed away in Ohio, but held interest in a timeshare in Nevada by deed, then the Decedent would have a probate proceeding in Ohio and a separate probate in Nevada. A probate administration established for the sole purpose of transferring an interest in a timeshare is extremely time consuming and expensive, and most importantly, can be avoided.

 

Contract Timeshares

If the timeshare is a contractual “right to use” and the value of the timeshare is less than $20,000, then in Nevada the beneficiary or heirs of the Decedent can possibly transfer the interest by use of an Affidavit of Entitlement without any court proceedings, with the assumption that there are no other assets in Nevada. If the value is more than $20,000, then it may be necessary for a probate administration to be established. Similar to deeded timeshares, the need for probate can be avoided with contract timeshares.

 

Avoiding Probate

If you own a timeshare in another state or own more than one parcel of real property in different states, the easiest way to avoid costly probate is to create a revocable living trust. A trust, if funded properly, removes the assets from the jurisdiction of the courts and, upon death, the trust will pass ownership interest to the listed beneficiaries of the trust without court involvement. A trust will alleviate the necessity of creating numerous probates in different states.

If you own a timeshare, it is important to contact an estate planning attorney and put the timeshare in a living trust so you do not inadvertently burden your loved ones.  If you have inherited a timeshare, it is important to contact an attorney in the jurisdiction where the timeshare is located to determine your options.

Footnotes   [ + ]

1. perhaps a bit nefarious

Is a Will Invalid with an Incorrect Middle Initial?

 

Will a court deem a will invalid if it contains the wrong middle initial?

Transcript:

I’m Jordan Flake, Managing Partner of Clare Counsel Law Group. One of the questions we get is, “I had a lawyer file probate for my mother and they didn’t include the middle initial in her name. Does that matter?” Basically, when you file a probate, the question is … You get authority from the court to perform certain tasks on behalf of the estate. The reality is, if the bank … let’s say your mother passed away and she had a bank account or she had a home … If the bank or the county, where the property is located, recognizes the individual who’s listed in the order, then you’re not going to have a problem if there’s a minor typo.

Oftentimes we will list out an individual’s name, other names that they go by, initials, different titles, that go along with them because we find that individuals have assets titled in many different ways. That’s the safest way possible to make sure that you don’t run into a problem with the bank or with the county, in terms of making sure the property gets transferred properly.

What is the Difference Between a Revocable and Irrevocable Living Trust?

 

What to know about a revocable and irrevocable living trust

Transcript:

Hi, I’m Jordan Flake, managing partner of Clear Counsel Law Group. A lot of our clients ask us what’s the difference between a revocable trust and a irrevocable trust. As the names imply, a revocable trust you can revoke it. That includes amending it, changing it. Altering it over time, adapting it to your life circumstances. One other subtle feature of a revocable trust a lot of people don’t know about is that you can access the assets that are held in the trust at any time. You can liquidate them and use them however you want.

An irrevocable trust is very different because, as the name also implies, you can’t revoke it. Once it’s created and once you place assets in that box that is the irrevocable trust, they’re gone. They can still be used for your healthcare benefit, maintenance, support, things like that; but the reality is, under almost all circumstances with the irrevocable trust, you can no longer reach into that box, grab out those assets and use them however you like. In a sense, you’ve disclaimed ownership or some control over assets in an irrevocable trust.

Because of this, a lot of people opt for the revocable trust. There’s a lot more flexibility. Why would you ever want an irrevocable trust? The irrevocable trust has a really big advantage over the revocable trust because it is also much more creditor protected. If you properly place assets away into an irrevocable trust and you do it correctly and the right amount of time passes, and you go through all the formalities, those assets can actually be kept out of the hands of your creditors to where they can no longer collect against them. In a sense, you think about it, you don’t have access to those assets and neither do they. That’s the give and take of irrevocable trusts.

Revocable trusts, you have access to the assets, so do your creditors, but it comes with the advantage that it’s amendable, changeable, and you can reach in grab those assets. That’s the difference between revocable trust and an irrevocable trust. We’d love to talk to you about both those options.

mental capacity, undue influence, ernie banks, Baseball Field

Mr. Cub’s Legacy, Mental Capacity, and Undue Influence

Hall of Famer Ernie Banks, “Mr. Cub,” played 19 seasons with the Chicago Cubs, averaging more than 30 home runs and 100 RBI per season. He played from 1953 to 1971 with the Chicago Cubs. Banks captured the National League MVP in 1958 and 1959. He was inducted into the National Baseball Hall of Fame in 1977 and named to Major League Baseball All-Century Team in 1999.

Ernie Banks was a world class athlete and regarded by many as one of the greatest baseball players of all time. A statue of Ernie Banks currently stands at the entrance of Wrigley Field.

His physical and mental strength is obvious from his many accomplishments. Unfortunately, his health deteriorated quickly at the end of his life. He was diagnosed with moderate to severe dementia and later died by a heart attack in January 2015. Yet his death was not accompanied by mourning and celebration of his lifelong accomplishments, but was entangled with a potential legal battle regarding his testamentary wishes.

Court records show that in 2008, Mr. Banks prepared a will and trust to distribute his assets or estate to his wife and three children. He also requested that his ashes to be scattered at Wrigley Field “when the wind is blowing out.” However, the source of controversy is predicated on a second will and trust that was prepared in 2014 that disinherits his wife and children and bequeaths the entire estate to his then caretaker, Regina Rice. According to Ms. Rice, Mr. Banks entrusted her to carry out his wishes and wanted to make sure his estranged wife did not share in his estate after he passed.

An individual has the right to bequeath his or her legally owned property to anyone he or she wishes. However, each state in the US has certain requirements that must be met in order for any testamentary document, such as a Last Will and Testament or a Trust, to validly transfer property from the decedent to the beneficiaries or heirs after passing. There are two issues that highlight the disputes between Ms. Rice and Mr. Bank’s family:

  1.  Did Mr. Banks have the mental capacity to change or alter his Testamentary documents in 2014?
  2.  Was Mr. Banks unduly influenced by his caregiver to change his documents for her benefit?

 

Mental Capacity

An individual must have his or her legal mental capacity in order for the testamentary documents to be valid after his or her passing. In Nevada, courts have held that for a person to be of sound mind while executing a will, a person must:

  1. Know what a will does;
  2. Know generally who are his heirs;
  3. Have a general understanding of his assets; and
  4. Decide how he wishes to distribute those assets after his death.

In this case, court filings indicated that Mr. Banks meet with a neuropsychologist at the University of Illinois Medical Center on October 14, 2014 and the evaluation “specified that Ernie exhibited significant cognitive impairment that indicated a presence of dementia of moderate to severe degree.” In the petition to contest the validity of Mr. Bank’s 2014 will, his family presented evidence that Mr. Banks’ health, both physically and mentally, was deteriorating rapidly. In October, just prior to his visit to the University of Illinois, he fell at his home and was lying on the floor for several hours. He was taken to the hospital and later released to Ms. Rice under orders that he be constantly supervised.

However, the two witnesses to the will, employees of the attorney’s office that prepared the will, have indicated that Mr. Banks was lucid and was able to communicate his desires without assistance.

If Mr. Banks family can convince the court that the mental examination only weeks before the execution of the will is valid and performed under normal circumstances, Mr. Banks family will have a strong case to have the 2014 will deemed invalid.

 

Undue Influence

A will can likewise be declared invalid if the individual was influenced by someone who occupies a position of trust1)Caregiver or housekeeper for example that manipulates the vulnerable person to change his testamentary documents to benefit the caregiver or housekeeper.  In Nevada, when a will devises property to a person’s caregiver those transfers are presumed void. The basis is that a vulnerable person, elderly or mental incapacitated, relied on the caregiver and the caregiver used her position to coerce the vulnerable person into naming her as the beneficiary contrary to his true wishes. The caregiver must rebut this presumption with clear and convincing evidence that the gift of the property through the will was truly the wishes of the vulnerable person and not the product of undue influence.

Mr. Banks’ family has evidence to show that Mr. Banks was vulnerable to his then caregiver and that through her influence and position, she was able to coerce him into changing his will for her benefit. As the case stands, the caregiver has not presented any evidence to show anything to the contrary.

Mental diseases can occur at any time, regardless of age. If you believe your loved one has been unduly influenced or you simply want to ensure your estate planning is handled before it is too late, please do not hesitate to contact Clear Counsel Law Group for a free consultation.

Footnotes   [ + ]

1. Caregiver or housekeeper for example
undue influence, probate, estate planning, parents, elderly, mother and daughter

Top 10 Ways to Protect Yourself Against Claims of Undue Influence

If you are taking care of your elderly mother or father, especially if your parent is living in your house with you, pay attention: Your siblings will claim that you exerted undue influence on your parent. I am probably being a little overly cynical, but claims of undue influence, both before and after mom or dad have passed away, happen all the time and keep many lawyers in business with tens of thousands of dollars in legal fees paid pursuing and defending against claims of undue influence.

Unfortunately, the elderly in our society are susceptible to influence. In general, the elderly want to be liked and do not want to upset their children by disagreeing with something that the child proposes, particularly if the elderly parent is living with or dependent upon the child. Even when the child has no bad intentions, suggesting a course of action that the parent would not agree with is a type of influencing of the parent. And, even when the child has no bad intent at all, a suspicious or jealous sibling will do everything in his power to make those actions look as nefarious as possible.

If you are the primary caregiver for your parent or if your elderly parent lives with you, here, then, is the top 10 list1)Given the limitations of this medium, you will just need to imagine me throwing a note card/the crashing glass sound upon completion of each point of things that you absolutely must do to protect yourself from the inevitable claims that you have unduly influenced your parent2)“Paul, hit the music!” and stay tuned next week for a our new segment “Will this legal concept float?”.

The Top 10 Ways to Avoid an Undue Influence Claim Against You

#1: Be Transparent

Undue influence and particularly the suspicion of undue influence, grow in the shadows. Your siblings will become more and more suspicious if they have no idea what is happening with your parent’s health care and financial situations. Share financial statements and medical information with your siblings. “But wait a minute,” you say. “This is none of their business. What Mom and I do with her money is her business. I don’t have to tell my brother what we are doing.” You may feel this way and you may be right. However, if you choose to keep your siblings in the dark about mom’s health care and finances because it is not their “business,” just know that an eager lawyer will make it their business soon enough.

 

#2: Have a Written Agreement

You might think this is silly and overly formal, but make a written agreement with your parent about your arrangement with him/her. If Mom is going to contribute $200 per week for the joint household expenses, write it in an agreement. If Dad is going to pay you $1,000 per month for your caregiver services, write it in an agreement. If Mom and Dad are paying you back for expenses you incurred, write it in an agreement. When your brother sues you for undue influence (and he will) and the only thing that he sees is a check coming out of Mom or Dad’s checkbook written to you, he will naturally assume you were just cashing in at Mom or Dad’s expense. You might be able to convince the judge, eventually, that the arrangement with Mom and Dad was always on the up-and-up, but it will cost you much more in legal fees to do so than Mom or Dad ever paid to you. Write it down, have everyone sign it, and preferably have an independent third party (someone outside the family) be a witness to the agreement.

 

#3: Keep a Paper Trail

Receipts, receipts, receipts. Keep a receipt for every penny of your mom’s money that is spent. If Mom likes to pay with cash only, make sure you get a receipt for every cash purchase. If checks are written, make sure there is written documentation of the purpose of the check, especially if the check is to you3)see #2 above, your spouse, or to another person that would not be obvious what the check is for.

 

#4: Do Not Use Cash

Many elderly people like to operate only in cash. Trust me: cash causes problems. The only thing that your sister sees when she claims to everyone on Facebook that you are exploiting Mom is a bank account statement showing hundreds or thousands of dollars in ATM cash withdrawals every month. Sister is also likely to claim that you were the one using Mom’s debit card to make the withdrawals (which is probably true). It looks bad for you even if you did nothing wrong and even if you really did give all of the cash to Mom. Strongly encourage Mom to use a debit card or write checks4)I know, I’m old fashioned. A debit card purchase will at least show the payee on the bank statement if you forget my advice in #3 to keep receipts. If Mom insists on using cash, remember to keep receipts for every penny.

 

#5 Document Gifts or Avoid Gifts Altogether

Just as cash causes problems, so too do gifts. Mom may want to give you a couple hundred dollars here or there to thank you for your hard work. Or, Mom may give you an item of jewelry (usually the coveted diamond wedding ring). It is best to avoid gifts prior to death altogether, but if Mom insists on giving you something (whether it has a lot of value or just sentimental value) you need to protect yourself because Sister is not going to be happy when you claim that Mom gave you the diamond ring. Make written documentation of the gift and have Mom sign it. Document what the item is, when Mom gave it to you, and, in the best case scenario, a statement of why she is giving you the gift. More importantly, have an independent third party (someone outside the family, like an attorney, and preferably not one of your friends) also sign a statement about the gift. It would be most effective if the third party witness talked with Mom outside of your presence about the gift and could sign a statement explaining why Mom is making the gift. The more documentation you have, the better it will be for you when Sister sues you for taking Mom’s jewelry or stealing Mom’s cash.

 

#6: No Joint Bank Accounts

If Dad suggests that he wants to add your name to his bank account, urge him not to do so. When a bank account is held in joint ownership and one of the joint owners dies, the law presumes that the surviving joint owner is the 100% legal owner of the bank account and has no legal obligation to share the account with anyone else. Brother will claim that you wrongfully convinced Dad to put your name on the bank account so that you could claim surviving ownership of the account when that is not what Dad intended. Instead of joint bank accounts, Dad should consider adding your name to the account as a power-of-attorney5)but remember that all authority as power of attorney terminates upon Dad’s death, or Dad may consider creating a revocable living trust and placing the account in the trust with you as a trustee. Which brings me to …

 

#7: Proper Estate Planning

Hopefully, far in advance of you taking care of Mom full time or having Mom live with you, Mom established a relationship with a good estate planning attorney and has signed power of attorney documents and possibly, created a revocable living trust. If Mom has not yet done so, Mom should do so as soon as possible. WARNING: This is a sticky process. If you find the attorney for Mom, set up the appointment with the attorney, drive Mom to the appointment, or sit in with Mom and the attorney in the consultation and signing appointments, these facts will be used as evidence that you unduly influenced Mom to make the power of attorney, will, and/or trust that benefits you. Be helpful, but not overreaching. If Mom does need help getting to the attorney’s office for the meeting, do not sit in any meeting with Mom and the attorney. If Mom disinherits any of your siblings after she has started to live with you or after you are her caregiver, just know that you will be sued for undue influence even if you had nothing to do with the decision or process of your Mom disinheriting your sibling. I repeat, if Mom disinherits one of your siblings, you will be sued. In any event, even with potential problems, it is far better for Mom to have met independently with a good estate planning attorney who can do an independent analysis of Mom’s situation and assist her in making her wishes known.

 

#8: Do Not Use Fill in the Blank Estate Planning Forms

Dad probably does not want to pay for an expensive attorney to do estate planning for him (see #7). You cannot make him do so. But, please do not make the situation worse by buying Dad the fill-in-the-blank forms that are available at office supply stores. More often than not, these forms are completed incorrectly or signed, notarized, or witnessed incorrectly, both of which could cause the forms to be invalid. In any event, Sister will claim that you unduly influenced Dad to sign these forms, especially when everything is filled in in your handwriting, not Dad’s.

 

#9: Do Not Isolate Your Parents

It is crucial that you allow your siblings access to your parent, including phone access, email access, and in-person access. Even if you cannot stand to see your brother’s face, if he feels like you are preventing him from seeing Mom, he will sue you for undue influence. Be overly accommodating and go out of your way to make time for Mom to spend time with your siblings or to speak with them on the phone. To protect yourself even further, keep a log if your mother’s visits with her other children and keep track of the phone records that show calls to and from Mom with her other children.

 

#10 Repair Relationships

This may be the most difficult advice to give and for you to receive. If you are reading this blog post, and you are concerned about what your siblings will claim about you and your relationship with your parents, then you might have a dysfunctional relationship with your siblings. These could be deep-rooted issues and you may not like each other as much as you used to. As much as we all dislike minor children being a pawn in a divorce proceeding, it is equally bad when an elderly parent is used as a pawn in a power struggle between feuding adult siblings6)who often times are not acting very much like adults. This is a great opportunity to heal with your siblings and bring everyone around to supporting Mom or Dad in their later years. Swallow the bitter pill, be the better person, and make that most difficult first phone call to bury the hatchet7)It seems so much worse in theory than in practice. If you think your relationship with your siblings is bad before Mom or Dad pass away, just wait until Mom or Dad have died and you are sued for undue influence to see how much worse it can get.

Unfortunately, most people who care for their parents as a primary caregiver, or who have their parents living with them, are unaware of the undue influence risk. Relying on the well-worn statement of “I didn’t put a gun to her head” is not a very effective defense when your siblings – or rather your siblings’ attorney – come calling to claim that you exerted undue influence on your parent. The last person you will want to see while grieving your loss is a process server.

 

Footnotes   [ + ]

1. Given the limitations of this medium, you will just need to imagine me throwing a note card/the crashing glass sound upon completion of each point
2. “Paul, hit the music!” and stay tuned next week for a our new segment “Will this legal concept float?”
3. see #2 above
4. I know, I’m old fashioned
5. but remember that all authority as power of attorney terminates upon Dad’s death
6. who often times are not acting very much like adults
7. It seems so much worse in theory than in practice
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