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FAQs #19

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Q19. Help! My uncle, whom I grew up with, has Alzheimer's; and my aunt, who raised me, is physically frail. They recently were assisted in moving from the family farm to an apt. in town where they have better access to services. They contacted an attorney who seems to have changed their will, with the help of some other family members who said that my uncle "doesn't need to be competent to sign this new will, he just needs to know that he has something to give, and someone to give it to." I would like to see the new will, but don't want to appear mercenary. Any ideas on what my rights are?

A19. Elizabeth Kelly:
>Capacity Is Presumed —
>Capacity is presumed and the burden of proving incapacity is on the person alleging incapacity. Incapacity for purposes of a guardianship and the need for a conservator must be proven by clear and convincing evidence.

"Right" To Read The Will —
>Unless the aunt and uncle give their express and informed consent, the niecenephew does not have any right to read the will or talk to the attorney about the will. Information between a client and their attorney is confidential and privileged.

Capacity For What? —
>A person can have the mental capacity for one task or type of legal transaction and considered to be incapacitated for another type of task or transaction. The requisite mental capacity to make a will in Colorado is based on the following:<cite>

    1. Does the person making the will know the "natural objects of their bounty?"
    2. Can the person identify the nature and extent of their property?
    3. Can the person understand that the property will be transferred at his/her death?"
    4. ><


    Testing for Mental Capacity & Adult Protective Services —
    >If concerns continue about whether a person has the requisite mental capacity to perform a certain task, neuropsychological testing and a medical exam may be indicated. The persons subject to the testing and exam must consent to these procedures. If the older adults do not consent to the testing and exam, and serious concerns about possible financial exploitation or undue influence in making the will persist, the concerned niece or nephew may want to contact the county Department of Social Service, Adult Protective Services Unit. An investigator can contact the older adults to assess whether they are in need of protective services. Of course, if the older adults are mentally intact, they may refuse any services offered by the Department of Social Services. Although the identity of the person who reports their concerns about the older adults to the Department of Social Services is confidential, in some cases the person subject to the report may be able to guess who reported them. Even if the concern is reported in good faith, the reporter may risk alienating the older adults. However, if the older adults are at-risk for exploitation, the need to protect them may outweigh the risk of being identified as the reporter.<cite>

    Is There A Power Of Attorney? —
    >It is important to identify whether the older adults have named an agent under a power of attorney. A diligent effort should be made to identify and locate an agent before looking at other more restrictive forms of surrogate decisionmaking.<cite>

    Conservatorship —
    >If no agent exists and serious concerns remain about the protection of the older adult's assets, the niecenephew may want to consider whether to initiate a conservatorship proceeding in the court. A conservator is a fiduciary appointed by the court to manage the "protected person's" assets.

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