By
George Dickerman
This brief article describes what remedies are available, through
conservatorships, when an elder has been unduly influenced into
changing their trust's beneficiaries.
A person makes a family trust to accomplish a variety of things,
both during and after their life. After death, their trust primarily
serves to distribute their property and money to loved ones. During
their lifetime, an elderly man or woman may become mentally
incapacitated and require the establishment of a conservatorship so
the court can appoint someone to have authority to make sound
financial and healthcare decisions.
During this conservatorship process, it is often discovered that
the elder had previously prepared a trust that named certain family
members as beneficiaries. It may also be discovered that the elder,
during a time when their mental capacity was questionable, made an
amendment to their trust that disinherited their family members and
named new beneficiaries. If this amendment were the result of undue
influence, then the court can remedy the problem by ordering a
"substituted judgment".
Most courts, including my hometown in Riverside County,
California, will bend over backwards to honor a person's
testamentary wishes as instructed in a trust document. Substituting
the court's interpretation of that person's wishes, when two
competing documents exist, is a difficult task and requires
overwhelming evidence to prove the true intent of the elder.
The court will take into account many facts and circumstances in
making its decision. Witnesses can be called to testify to the
elder's mental state during the time that the original trust and
amendment were created. However, the most compelling proof may be
found in the elder's medical records at the time of the purported
amendment.
During this time, the elder may have begun suffering from short
or long term memory loss, or been diagnosed with dementia or some
stage of Alzheimer's disease. Their doctor may have prescribed
psychotropic medications - mood altering drugs to slow down the
symptoms of mental incapacity.
Additionally, evidence of the relationships between the elder's
family members (original beneficiaries) and the new (purported)
beneficiaries can be presented. The new beneficiary may be a
caregiver who has lived with the elder at their home in order to
provide companionship care. This new relationship may have existed
for only a few months before the trust amendment was made. An elder,
with diminished mental capacity, can quickly be taken advantage of
in this fashion. Discovering the identity of the person who drafted
the trust amendment, how the elder was introduced to them and the
circumstances surrounding the actual signing of the amendment, can
provide significant proof of undue influence.
Substituted judgment is one of the remedies available to
invalidate wrongful amendments to family trusts when an elderly
victim is under a conservatorship. Time is of the essence and will
require an elder law attorney who is experienced in issues involving
elder financial abuse.
By: George F. Dickerman, Esq.
George F. Dickerman is an elder law attorney in Riverside
County, California, practicing law for 23 years. To learn more
about elder law issues, including substituted judgment, and to
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