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December 2010 Archives

Does Mom Have the Capacity to Sign That Document?

With so many of our older clients suffering from the dementia and the early stages of Alzheimer's, as well as younger clients who may have developmental difficulties, estate practitioners are sometimes at a loss to determine whether a client has the capacity to execute the documents we have drafted. We recently received additional guidance from the Appellate Division, Fourth Department. During a guardianship proceeding that was later dismissed, a daughter sought to prove that her mother lacked capacity to execute a Power of Attorney and a Health Care Proxy, appointing a grandson and another daughter, respectively, as agents. The Supreme Court of Oswego County (Judge John J. Elliott) found that the mother had capacity to execute the documents, and dismissed the guardianship petition. The Appellate Division later affirmed (In the Matter of the Application for the Appointment of a Guardian of the Person and/or Property of Mildred M.J., an Alleged Incapacitated Person, 43 A.D.3d 1391, 4th Dept. 2007). The allegation was that the mother was suffering from dementia, and was therefore not able to understand the documents she was signing, or the consequences of signing them. There was testimony at the hearing that the mother did indeed suffer from "moderate" dementia. However, the Appellate Division stated that "there is no presumption that a person suffering from dementia is wholly incompetent." The court required other evidence to show that the mother lacked capacity at the exact time she signed the documents. Instead, the other children presented the testimony of a doctor and a nurse practitioner, who stated that the mother "would have been able to understand questions such as whom she would like to make her health care decisions if she were unable to do so and whether she would like her grandson to handle her financial affairs." The drafting attorneys also testified in support of the mother's capacity (every estate attorney's least favorite activity). Only that most basic understanding is required in order to have capacity to sign estate planning documents. We often advise our clients to create Health Care Proxies and Powers of Attorney in order to avoid the nightmare of a contested guardianship proceeding. It is unfortunate that it had the opposite result in this case.

  • I wanted to write to say how pleased my wife and I were at your professional handling of our estate planning and preparation of new wills. We were put at ease by your visit to our home for an interview and were pleased that you listened to us and captured the things that we felt were important.

    --Robert and Christine Simonson, Fairport
  • In order to finalize the documents we came to your office and were greeted in a very professional manner and we could not have asked for finer service. We left with copies of everything we needed and feel very confident our needs have been met. Thanks again. We will surely recommend you should the opportunity arise.

    — Christine and Robert Simonson, Fairport
  • I have been working with Weinstein & Randisi for about two years now. Elizabeth Randisi, through a very thorough process, has helped my wife and me determine what is really important in our lives. Thus, we were able to draft a living will that reflected our most important values regarding our estate.

    --David and Ajia Cherry, Fairport
  • I would like to give a testimony for Elizabeth Randisi, an estate attorney with Weinstein & Randisi. Her knowledge of wills and estate planning was clearly demonstrated in her presentation to us. Realizing our need for a will, my husband and I went to see Elizabeth.

    --Kathy and Gary Gray, Webster
  • Filing for Medicaid is never an easy or fun process. However, working with the Weinstein & Randisi firm made the process simple and streamlined. We were able to obtain all files and records regarding Medicaid enrollment within a few days using specially prepared checklists and verbiage recommended by our assigned paralegal.

    --Ajia and David Cherry, Fairport
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Rochester, NY 14625

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