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Law Offices of Ronald W. Rutz
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October 7, 2002: Competency Concerns

Q: I read your last Senior Voice column about recognizing limitations as one gets older. But whom can I trust? And it's my money, so why can't I leave everything, for example, to a group that wants to put dresses on cows and goats, if I wanted to do so?

A: Except for a spouse, no one has the right to inherit, even though certain groups, such as children, seem to have the expectation of receiving mom or dad's estate. The following are concerns that need to be reviewed.

The issue of "Competency to do a Will" might arise at certain times and should be the first concern. But the threshold when someone has the legal capacity to do a Will is relatively low in Colorado. So if a person knows the general nature and extent of his or her assets and who the natural bounds of affection and remembrance would be, then that person probably has enough understanding to do a binding Will, even if such a mental state is not present 100% of the time and even if the person might be suffering under such debilitating conditions as Alzheimer's.

If there is a question whether a binding Will can be signed, most attorneys will have a set of questions prepared and then have a secretary be present or even videotape the responses, thus preparing a record if the Will is later challenged.

Many attorneys will also exclude the people that brought the client to the office, even (especially) children, so that the client will not be overly influenced by the presence of others. It still amazes me that someone's stated position, when alone, can be 180 different than when not alone.

This is also true when "advisors" are present, such as financial planners, CPAs, trust officers, or even other attorneys. Too many of them have their own agendas, such as selling the idea of a living trust, insurance, annuities, etc.

In doing a Will, a living trust, or Durable Powers of Attorney, even lawyers sometimes forget that ethically their job is to represent the interest of the client doing the Will, not the persons who brought the client to the lawyer's office. There is no "logical way" of leaving property or doing investing.

Normally if there is a question as to competency, your attorney should not be asked to be your personal representative or your trustee because this might bring into question that attorney's objectivity, thus weakening the Will and other prepared documents. But if you do not have anyone else, then such an advisor could be used as a last resort.

So where does that leave us, you might be asking? If the Will might be contested for any reason, be sure that the attorney takes the proper steps to insure that your wishes will be upheld. If that is the case, then as long as you have the minimum capacity at the time of signing the Will, distribute your assets as you decide, and pick fiduciaries of your choice.

But if a non-interested fiduciary, such as an attorney, raises competency concerns, then bite the bullet and consider deferring to him or her. The alternative would be a competency hearing before a judge, or even worse, your "beneficiaries" having the last laugh by defeating your wishes and taking all of your assets under the intestate laws.

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