Planning for Life

6 Red Flags of Potential Undue Influence, and How to Respond

Posted by Harry S. Margolis on December 11, 2018

By Harry S. Margolis

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Most estate planning matters present no issues of potential undue influence or incapacity. The client or clients (if a couple) meet with the attorney. They discuss the clients' goals and the best ways to reach them, develop a plan, and then implement it.

But some situations are out of the ordinary and require the lawyer to take extra steps to ensure that the client is not subject to undue influence.

Definition of Undue Influence

Before we list those circumstances, let's review the elements that must be proved to establish the existence of undue influence to invalidate an estate plan. There are four such elements which together prove undue influence:

  1. The estate plan involves an unnatural disposition of the estate (see 3 below),
  2. By a person who is susceptible to undue influence (see 1 below),
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Topics: incapacity, undue influence

Don't Ask a Neuropsychologist About Legal Capacity

Posted by Harry S. Margolis on November 13, 2018

By Harry S. Margolis

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In it's hopeful article on "Leading an Active Life With a Diagnosis of Dementia," The New York Times correctly describes some of the legal documents we all should have in case we lose cognitive function, including financial powers of attorney and health care directives. But in raising the question of the individual's legal capacity to sign the documents, it suggests that  a clinical evaluation is necessary "to determine whether the client still has the decision-making skills" to execute legal documents. The article quotes a neuropsychologist as saying that "[e]ven mildly impaired persons usually need to be carefully evaluated  before signing legal documents."

I disagree. We almost never take this step.

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Topics: incapacity

Older Couple Ordered to Complete Sale of Nahant Home Despite Claim of Incapacity

Posted by Harry S. Margolis on October 23, 2018

By Harry S. Margolis

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In early spring of this year, George and Maureen Burke, a couple in their 70s, agreed to sell their shoreline home in Nahant to Christopher Whitlock and Mary Flannery for $1.075. Soon afterwards, they had cold feet and their attorney sent Whitlock and Flannery's attorney a letter declaring the sale agreement to be null and void because (a) the Burkes' real estate agent had coerced them to sign, (b) Mrs. Burke "was on several medications at the time of signing, and (c) she didn't 'knowingly, voluntarily, or intelligently sign' the Agreement."

Whitlock and Flannery brought suit to enforce the agreement. In Whitlock and Flannery v. Burke and Burke (Essex Sup. Ct. Misc 18-000298, July 19, 2018) the Court finds that Mrs. Burke did understand the agreement and ordered that the Burkes carry out their obligations to complete the sale.

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Topics: incapacity

Strategies for a Full Life with Dementia

Posted by Harry S. Margolis on October 16, 2018

By Harry S. Margolis

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A recent article in The New York Times offered some hope for those diagnosed with Alzheimer's disease and other forms of dementia. Entitled "Leading an Active Life with a Diagnosis of Dementia," the article featured a woman, Laurie Scherrer, diagnosed with early onset dementia at age 55 who continues to lead an active life.

Steps Toward an Active Life with Dementia

Here are a few of the steps Ms. Scherrer took:

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Topics: dementia, Alzheimer's disease, incapacity

Demented Patient Liable for Injuries He Causes

Posted by Harry S. Margolis on November 15, 2016

By Harry S. Margolis

In Mary Ellen Gioia v. Richard D. and Ann L. Ratner, the Essex County superior court in Massachusetts refuses to dismiss a lawsuit brought by a registered nurse who claims she was injured by a patient in her care. She brought the suit against the patient, Richard Ratner, and his wife and health care agent, Ann Ratner. Judge Diane M. Kottmyer rules that the suit against Mr. Ratner can move forward but dismisses the claim against his wife.

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Topics: elder law, seniors, dementia, incapacity, caregiving, hospital care, deficit

FAQs About Your Health Care Proxy - Massachusetts

Posted by Rachel Sandler on March 20, 2014

By Rebecca J. Benson

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Topics: incapacity, Estate Planning, health-care decision making

Mother's Favoritism Held Not to Reflect Incompetence

Posted by Rachel Sandler on November 22, 2013

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Topics: Estate Planning, incapacity

Wisconsin Court Permits Challenge to Marriage Based on Incapacity

Posted by Harry S. Margolis on October 8, 2013

By Harry S. Margolis

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Topics: Estate Planning, second marriage, probate, incapacity

Should Your Durable Power of Attorney be "Springing"

Posted by Harry S. Margolis on September 20, 2011

By Harry S. Margolis

We advise all of our clients to execute durable powers of attorneyiStock-92399855.jpg appointing a trusted family member or friend to handle financial and legal matters for them in the event of a disability.  This ensures continuity in paying bills and handling personal business, can help prevent loss of funds and avoids the need to go to court for the appointment of a guardian or conservator.

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Topics: incapacity, Estate Planning

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