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Diminished mental capacity, undue influence and challenging a will

For many adult children, concerns over the physical and mental health of one’s parents are often a chief concern. In addition to worrying about an elderly parent falling or suffering a major health event like a heart attack, a parent's diminished cognitive health may also be concerning. According to the Alzheimer's Association, an estimated 11 percent of U.S. adults age 65 and older are currently suffering from the disease. For those who live to be 85 or older, incidences of the disease increase to 32 percent.

When considering how a parent's undiagnosed dementia or Alzheimer's may impact estate planning decisions, it's wise to be cautious yet also vigilant. This is especially true in cases where a parent, who is suspected of suffering diminished mental capacity, makes changes to an existing will or drafts an entirely new will.

In cases where another family member, caretaker or other individual is suspected of influencing a parent's decisions to amend or draft a new will, family members are advised to take action to investigate and address their concerns. Doing so, however, can be difficult as it may mean confronting a parent about his or her diminishing mental capacity or even taking action to have a health professional assess a parent's cognitive abilities.

When changes made to a parent's estate planning documents come to light after he or she has passed, grown children may choose to take legal action and file a lawsuit citing undue influence. In both cases, an attorney who handles estate planning and probate litigation matters can provide advice and assistance. Additionally, an attorney can assist family members in contesting a will and in proving that a parent lacked the mental capacity to understand the implications of the estate planning changes that he or she made.


Source: American Psychological Association, "Assessment of Older Adults with Diminished Capacity:" Sept. 9, 2015

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