In my 30 plus years of being an attorney, I have been asked numerous times by an adult child to re-write mom’s trust, or to create a trust for an elderly “friend”. On many occasions, the new trust would benefit the adult child or “friend”. This is a very dangerous area, and full of potential legal problems.
People often forget that attorneys have a duty to their “client” – which is “mom” or the “elderly friend”. The client (not a third party) must direct the attorney, without influence from anyone. So, if a third party is prompting an elderly person, or person with early dementia, to have a trust written which benefits that same third party, that action may be construed as “undue influence”. For example, an adult daughter caregiver brings mom to a lawyer to re-write mom’s trust. The new trust would then benefit the caregiving daughter more than the other siblings. If this were to happen, the other siblings could pursue an action in court, saying that the caregiver daughter exercised “undue influence” in having mom change her trust.
There is a presumption that undue influence occurred if an interested party can show:
· The victim was vulnerable (such as elderly, dependency, etc.);
· The influencer appeared to have authority over the victim (such as a family member or caregiver);
· Actions taken by the influencer (such as convincing mom that the influencer deserves a larger “inheritance”); and
· The result of the undue influence resulted in an unfair outcome (the influencer benefits).
Estate planning decisions rest solely with the client – and NOT with the family members or “friends”. It is important to have your living trust reflect your wishes, while you are healthy and of sound mind. As life, death, and incapacity are unexpected, it is wise to have your affairs in order while there is no question about your ability to act independently – without outside influence.