Using an Addendum to update Estate Planning docs

Is it possible to renew a set of estate planning documents by having the principal named in the documents sign a simple statement indicating that is his/her intent? The reason I ask is to come up with a simple solution to the following problem.

My elderly, widowed, Mother suffers from the beginning stages of dementia. In 2006, when the four older family members learned of her impairment, we hired an attorney to update her will, power of attorney, durable power of attorney for health care, and directive to physicians.

Unfortunately, we have a fifth family member who is a bit of a rogue and who knows how to manipulate our Mother. In recent months without discussing matters with anyone else in the family she took our Mother to an estate planning attorney to completely redo her will, etc.

I intercepted the attempt because I manage all my Mothers bill-paying. Because of her diminished mental capacity, she had no recollection of the visit. I had her sign a letter canceling the request. Phone messages to our rogue sibling have gone unreturned.

This has happened twice in the past few months. I've been fortunate to intercept the written communications so far, but there is always the possibility our rogue sibling will at some point instruct an attorney to send all communications to her rather than our Mother. At that point, we will not know the estate documents have changed.

My Mother has a modest estate ($300,000), and lives on Social Security and a small pension. Her estate documents are simple and straightforward. We are looking for an inexpensive solution.

One thought is to take our Mother to the attorney who last updated her will in 2006, and have her resign everything. And, repeat that process every few months. But that would likely be expensive.

Another thought would be to request blank versions of the estate documents prepared in 2006, and have her sign those every few months. That seems cumbersome (initial every page).

Our thoughts were to draft a simple, one page document that references the existing 2006 documents, and states they are current and all others are revoked.

What are your thoughts? Is a single page addendum a viable solution?

We have investigated the possibility of pursuing Guardianship for our Mother. But that would be costly and risky--although she has diminished mental faculties she may not be deemed incompetent.

Any other ideas you think helpful would be appreciated.
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Answers (2)

Phillip Gustavo Day

Phillip Gustavo Day

Contributor Level 5
It would be a very good idea to consult local counsel. It has been my experience that once a client is diagnosed with a mental deficiency, it's too late to change anything. Even if your mother changes her will, it could always be challenged on the grounds that your mother lacked the capacity to enter into any contractual relationship or to redo her will. Of course, if she has periods of lucidity which means she is okay temporarily, most attorneys won't advise that she redo anything, because it is only going to be met with a challenge on her death. Hopefully, her last will that was done when she had her full capacity is still around and satisfactory because that will probably be the will that survives. My only suggestion is that you all patch up your family affairs and agree to split everything equally, because the costs that both sides will spend to challenge and defend a will contest will eat up the modest estate. Appeal to one's economic sensitivity. It's better to split the pie equally, rather than split up a crumb unevenly.
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Kelly W. Case

Kelly W. Case

Contributor Level 5
It sounds like a guardianship might solve your problems. You should call attorneys in your area to determine the cost. Of course it will vary by experience and expertise in matters of probate and estate planning, but there are other factors to consider as well. Guardianships should not be too expensive unless they are contested. Of course there is a very real possibility that you will anger your mother, but you have to decide what is in her best interest. If your "rogue" sibling continues to try to get her to execute a new will, he may or may not succeed. Even if she suffers from diminished capacity, she can still execute a will that would force you and the other family members to contest it. This could be extremely expensive compared to the cost of a guardianship that would prevent this sort of malfeasance. In the long run it might be better for your family to consider establishing a guardianship rather that face a protracted court battle over which will is really the authentic one.
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