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Can an elderly woman with dementia have her property and money to reimburse for her care?

Brooklyn, NY |

And what would happen if she had a will stating the all her money and property goes to a childhood best friend of hers including her house?

Attorney Answers 5


  1. unfortunately your question regarding her property and money is not clear. can you re-post your question and re-phrase it.

    regarding her Will, other than a spouse, a person can leave their assets to anyone they want, assuming they have the mental capacity to execute a Will.


  2. If an elderly woman has dementia, a guardian should be appointed to care for her and her property. As for leaving money to a child hood friend, it depends on whether she had the capacity to execute the will, when she executed the will. Depending on who you are in the equation, you may want to see an attorney.

    If you'd like to discuss, please feel free to call. Jeff Gold Gold, Stewart & Benes, LLP 1854 Bellmore Ave Bellmore, NY 11710 Telephone -516.512.6333 Email - Jgold@goldstewart.com


  3. Mr. Gold and Mr. Buquicchio give you good advice. It is, however, difficult to evaluate your question in a vacuum.

    While there is no legal impediment to leaving one's property to anyone of one's choice, if it is an odd or unusual choice, it could buttress allegations that the person who executed the will lacked testamentary capacity or was subject to undue influence. These kinds of circumstances can lead to a contested probate proceeding.

    You ask about a will that would leave the entire estate to a "childhood best friend." You don't say, however, whether this "childhood best friend" is someone who she has been great friends with for, say, the past 70 years or whether it is someone with whom she has not been in contact for a half a century. You also don't say whether she is married or has any children, or, if not, whether she has anyone else in her life with whom she is particularly close.

    One cannot completely disinherit a spouse. So if she is married, her husband, if he were to survive her, would be entitled to at least a third of the estate under a New York statute known as the surviving spouse's "right of election."

    If she has children and has a relatively good relationship with them, it would be unusual to disinherit them. If she is long estranged from them, that might be a different story.

    A person with dementia may not have the capacity to execute a will. Generally, it takes less capacity to execute a will than it does to subscribe to a magazine. But the testator (the person whose will it is) must know the nature and object of her bounty and at least in general the extent of her assets. If a person who, for example, has an esate that is likely to be worth $1 million leaves her entire estate to the corner pretzel vendor with whom she has exchanged some pleasantries over the years, but disinherits her two children, this would (understandably) raise questions as to whether she has testamentary capacity.

    In New York, if a person is unable to attend to management of property or personal needs, a proceeding pursuant to Article 81 of the Mental Hygiene Law may be in order. That is a proceeding to appoint a guardian to assist her. The appointment of a guardian does not necessarily mean that the person lacks capacity to make a will, but, of course, it goes to the weight of the evidence.

    A guardianship proceeding is given high priority by the court, and it is usually a very quick proceeding. Often, the entire proceeding will take no longer than about two months (provided, of course, that it is not a contested guardianship proceeding, which could take a few additional months, depending on factors that are beyond the scope of your posting.

    You don't say who you are in this scenario -- are you a family member? Or are you the "childhood best friend"?

    Depending on your interests in this matter, you may wish to consult with an attorney who is experienced in both estate proceedings and guardianships. If you would like, you may feel free to contact me (or, of course, any of the other fine attorneys here on avvo).

    Good luck to you.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.


  4. I am a NY lawyer. You have been some very good advice. I would speak to a lawyer about an Article 81 guardianship. This will address the needs of her care. The guardianship does automatically affect a prior will. As was stated in the prior posts, competency at the time of making the will is the issue. You should speak to a lawyer on her behalf.


  5. There are two primary questions here.

    First, how much money does the individual have? If she has a modest amount of money and for whatever reason begins to collect state assistance, then the state can usually recover this sum at her death. This eliminates the problem of the childhood friend because it is likely that an individual with dementia will outlive their assets.

    Alternatively, if she has considerable assets then as you have previously been advised someone will need to start guardianship proceedings so that a competent individual can manage her money and pay her expenses until she runs out. In either case it would be wise to consult with an attorney about a variety of techniques to manager her money and or qualify for state assistance if needed.

    The second question is whether she had capacity when she signed her WIll. If she had capacity then the Will is likely valid and since she does not have capacity today you cannot modify it. There are two exceptions to this in that if she signed a Durable Power of Attorney that allowed her agent to modify her estate plan and that you could move for guardianship proceedings and then request permission of the judge to modify her will. If such power was given to the Power of Attorney or by a Judge and there is some evidence to identify that it would be in the elderly woman's best interest to change her Will then it may be able to be changed.

    In either regards it would be worthwhile to have a consultation with a local attorney to discuss the details of this specific case.

    Disclaimer: The foregoing answer does not constitute legal advice, is provided for informational and educational purposes only for persons interested in the subject matter. Each situation is fact specific and may be subject to state specific laws. Without a comprehensive consultation and review of all the facts and documents at issue it is impossible to evaluate a legal problem fully. This answer does not create an attorney-client relationship. No Tax Advice - Circular 230 Disclaimer - Any information in this comment is not intended to constitute a comprehensive and complete tax consideration analysis, and may not be used by the taxpayer to eliminate or reduce penalties by the IRS or any other governmental agency, nor for the purpose of promoting, marketing or making recommendations to other persons on any tax-related matters.

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