Updated: Sep 27, 2021
Dear Mr. Premack: In early 2019, when my dad was still walking and thinking clearly, we went to see an attorney in a small town near San Antonio. My dad has land, accounts, a homestead, etc. He is not married, and I am the only living relative. The attorney told us my dad should not do a will because as the only heir, Texas law says I will inherit without paying for or going to probate, to just save our money. The attorney said that no will means no probate means we save money. The lawyer also said we did not need a power of attorney for finances, again since I was the only relative. He did say dad should sign a medical power of attorney. The doctors and nursing home people will talk with me, no problem but no one at his bank or brokerage will talk with me about helping my dad with his finances. What can I do now? Dad no longer has mental capacity and is physically frail. PJM
You can’t go back in time to fix the bad advice your dad and you received. If your dad has truly lost mental capacity, then your legal options are limited. So, we must ask: what is mental capacity?
There are clear-cut situations where everyone would agree that a person no longer has mental capacity. If a person is unconscious, is suffering from memory loss to the degree that he no longer recognizes family members, or is having hallucinations that are disconnected from reality then that person lacks legal capacity.
But what about someone who is merely forgetful or frail, who has good days and bad days, or who is sharp in the mornings just like the old days but gets foggy in the evenings? That person’s legal capacity is harder to define. The standard for contractual capacity is a “meeting of the minds” with an understanding of the nature and consequences of an action. The standard for testamentary capacity is the ability to recall what you own, who is in your family, and how you want to distribute assets.
An individual may have capacity that is not gone but is diminished.
If so, those in positions of influence must be very careful to avoid unduly influencing the decisions of the individual. It can be a difficult path to navigate, compounded by the fact that a doctor’s opinion is not legally conclusive. It takes a Judge to make a final ruling on a person’s capacity, after taking into consideration the opinion of the doctor.
Where does your father reside on that spectrum? Is he completely unable to understand? Does he have better days or hours? It may be difficult to find an attorney who is willing to decide your dad has enough capacity to understand and sign a new Will and a new Durable Power of Attorney. The prior attorney with whom you and your dad consulted did not look at the worst-case scenario and ended up giving advice that failed to address these future issues.
Even if your father had no assets at all, he still needed and needs a capable representative to handle issues like contracting with a nursing home, handling an application for Medicaid benefits, and handling his bills. But your dad in fact has real property and financial accounts. He should have signed a Durable Power of Attorney and a Will when he had unquestionable mental and legal capacity.
Your only option may be to become your father’s court-appointed Guardian. This is a much more difficult and expensive road to travel compared to the cost of proper pre-planning. But Guardianship will give you authority to manage his finances under the supervision of a Judge so long as you pay for an adequate insurance bond.
And when your father dies, and lacks a Will, you are going to have to prove to a court that you are the sole living relative. You may have to go through a more complex and expensive probate procedure because he lacks a Will. Yes, if you are the sole living relative you will inherit his assets, but you will have more hoops to jump through to become owner of those assets than you would have had if your dad had made a valid Will.
Published on 3/2/2021
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington.