Trust and Estate Counsel

Tennessee Estate Planning Law

Insight and commentary on estate planning issues impacting affluent residents of Tennessee

Slipping Into Darkness - Protecting a Parent with Early Stage Dementia

I occasionally receive inquiries from a child whose parent has early stage dementia. The conversation frequently starts out with statements like “Dad’s short-term memory is awful” or “Mom is beginning to make some really bad decisions.”  Even better, “Dad has had 3 wrecks and refuses to quit driving.” The Child wants to know what can be done to protect the parent.

I encourage the child to seek medical help from the parent’s physician and to build a strong support group of friends and family members who will watch out for the parent.

 

Today, I received an inquiry from the son of a man who recently gave $100,000 to a stranger that is currently in FBI custody.  Apparently, this stranger has persuaded several other elderly folks to make "investments" with him.  The father has horrendous short-term memory, but still recognizes family members and other close acquaintances and can handle routine financial transactions such as writing a check to pay the electric bill.

 

I told the son that he has two choices. The best course of action is for the son to try to convince the father to visit with an attorney to discuss ways of protecting his assets.  I encouraged the son to enlist the aid of his father’s closest friend in discussing this matter with his father.

 

If the father is unwilling to cooperate in seeking a solution, the son’s other alternative is to petition the court to appoint a conservator for his father. This course of action should not be taken lightly. Judges are very hesitant to take away a person’s legal rights. Proof of “bad decisions” is not enough to take away a person’s legal rights when that person has periods of “lucidity.” Furthermore, even if the Judge agrees to appoint a conservator, this does not necessarily mean that the father will be unable to change his Will. The dilemma for the son is that he may jeopardize his future inheritance by applying for conservatorship.

 

I have seen the problem from other perspectives.  I have been involved in several lawsuits involving decedents who had a period of dementia prior to dying and either made suspicious gifts or changes to their Will late in life. The net effect of the gifts or Will changes was to distribute the decedent’s assets in a significantly different manner than had been intended by the decedent before the onset of dementia. As a general rule, it is very difficult to change this result.  The beneficiaries who were harmed by the change must prove that the decedent lacked legal capacity and/or was unduly influenced to make the change. Because the decedent is not available to testify, his mental condition can only be proved by inference.

 

Sometimes, my clients ask for my assistance on how to plan ahead to protect themselves from making bad decisions if they later suffer from dementia.  There are some very good safeguards that can be put in place.

 

In summary, the onset of dementia poses a great risk to a person's financial well-being. There are no foolproof solutions, but planning ahead can minimize the damage.