Mother’s Day Advice: Doctor Says She’s Okay to Sign Her Will?

People ask me this all the time. Usually Mom has left the hospital and people ask me if I make house calls. Here’s what you need to know if you must call a lawyer for your parent.

When your father or mother signs their will, they must make decisions involving family, property, tax, and estate laws. Regardless of what their doctor may think, this involves legal issues and not medical ones.

If your mother wishes to change her will, her most recent lawyer should make the changes.  This is not because I am trying to keep other lawyers busy. If you make minor changes to your will, you still need a complete financial evaluation. That includes assessing all income tax consequences.

“But, Ed, it’s all right. Mom is fine with the original will. She just wants small changes. Isn’t that what a codicil to a will is for?”

Don’t make these three dangerous assumptions about changes to a will. The dangerous assumptions are that

1. there were no mistakes made when the original will was prepared

2. circumstances and laws have not changed since the will was signed

3. the changed will still works as part of an overall estate plan

No lawyer can afford to make these assumptions. They can be sued for not catching any prior errors. Instead, lawyers must insure the original will and any codicil are both valid. This includes taking a family history with a financial and tax analysis.

Simple Will Changes or Codicils

You probably think I am making this harder than it should be. Especially since your mother needs to make you her only executor.

“My mother just wants a simple change to her will, Ed. How much trouble is that?”

Think of it like a visit to your dentist. Only the dentists can look inside to assess the condition of your teeth.

You tell the dentist you need your teeth cleaned and that’s it. You don’t want x-rays, fillings replaced or a tooth pulled.

What if the dentist doesn’t tell you an infected tooth must be pulled?

Is the dentist safe for not warning you of the pain to come?

Is the dentist off the hook because you said, “Look the other way”?

Legal Capacity to Change Wills

Regardless of the opinion of your mother’s doctors, a lawyer must do a capacity assessment.

The capacity to change a will is a legal requirement. It is not a medical condition. A lawyer must assess a person’s capacity. Most medical practitioners cannot tell you the definition for capacity to make a will.

Most medical experts would be surprised to know that there are different types of legal capacity. As result of their training, they cannot be faulted.

Your mother’s age and circumstances may necessitate investigations that take more time and add costs.

Normally, I cannot do this unless your mother calls in person to arrange a meeting in my office.

Happy Mother’s Day to all!