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Would having an elderly dementia patient sign legal papers be elder abuse?

Gales Ferry, CT |

I'm not sure how bad the court would say she is but she's getting bad in a day to day way.

Attorney Answers 3

Posted

I'm not sure what you mean by "being elder abuse." A person with advanced dementia likely does not have the capacity to make binding legal contracts, or to create a power of attorney or have an accepted application for a voluntary conservatorship. Such agreements are called "voidable" because no court has established the extent of the incapacity. That said, people with lesser degrees of dementia can enter perfectly lawful arrangements, as can individuals who are more lucid some times than others. The only way to completely bar these arrangements is to apply for an involuntary conservatorship, in which case the probate court makes a finding of incapacity that then renders them legally unable to make contracts and sign legal papers.

As for elder abuse, this is a complex area of law. Normally, it's a neighbor, friend, or other family member that contacts elder protective services about potential abuse and neglect situations, but no matter who calls, including a dementia patient herself, they will investigate, offer some stop-gap services if necessary, and involve the police or attorney general's office if they believe there is criminal conduct in play. If the subject of an investigation is clearly incapacitated, but not conserved, EPS would ask that person to sign papers to go forward with any offer of assistance or referral for services, as they don't have a legal representative to sign for them. Perhaps this is the situation you are describing?

Attorney Rosenberg is admitted to practice in Connecticut and Massachusetts, and currently practices in South-Central Connecticut with an emphasis on estate planning, elder law, probate, and tax matters. He may be contacted confidentially by email at Scott@ScottRosenbergLaw.com or by phone at (203) 871-3830. All correspondence through this website appears publicly, is not confidential, and does not create an attorney-client relationship between you and Atty. Rosenberg. Discretion should always be employed when posting personal information online. ~~~~~~~~~~~~~ All online content provided by Atty. Rosenberg on this and other websites is provided for general informational purposes only, and does not constitute legal advice. All content is general in nature. Attorneys are unable to ask the questions necessary to fully understand the legal issues faced by any particular poster. Postings and responses to questions only provide general insights on the topic discussed. They are not tailored to any reader’s specific situation, will not be accurate in all states, and are never updated or maintained to reflect changes in the law. No person should take action based on the information provided by anyone on Avvo.com or any other law-themed website without first consulting a local attorney with significant experience in your area of concern. Persuant to Circular 230, no online content may be used by any person to avoid taxes or penalties under the Internal Revenue Code.

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3 comments

Asker

Posted

Thank you, Mr Rosenberg. You have answered several questions for me in this reply.

Asker

Posted

My father died last year. His wife completely took over everything in his last months ( POA, assets, his phone privileges ). All while talking him into a "Medicaid" divorce. She laughed and said we children were lucky he died before the divorce was final. I do have a lawyer involved. I was just not confident in our case until you said what my lawyer has been saying. Thank you SO much. I was ready to just give in.

Scott D Rosenberg

Scott D Rosenberg

Posted

This is a separate issue. As a matter of contract law (though the same principles apply to wills and trusts in probate court) transfers of assets can be reversed if they were made under fraud or duress, and in some cases there is a presumption of duress where it is established that the individual was of limited acuity and the beneficiary was a primary caregiver. That being said, she is his wife, and especially if these transactions were made on the advice of an attorney (his, not hers), that may not apply. Either way, it's not an uncommon situation, but you should retain an attorney quickly who can litigate this in the superior court and halt third party distributions to the wife if you have a case.

Posted

Legal documents have consequences in the real world. Dementia patients often don't have sufficient legal 'capacity' to really know & understand the consequences of documents they may be asked to sign. That is why a Conservatorship might be necessary. I'd recommend you sit down with an Estate Planning attorney. See 'Find-A-Lawyer' at the top of this Page.

My answer is based on the limited facts presented. It doesn’t create an attorney-client relationship. Use the ‘Find-A-Lawyer’ search engine at the top of this page and follow proper legal advice.

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Posted

Not necessarily. Elder abuse involves physical, emotional, or financial abuse of a vulnerable adult or vulnerable disabled person. A person with dementia can be competent to sign legal papers such as leasing a car or making a will or POA or not competent to do those things depending on the extent of dementia.

Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

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