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Incompetent for last will and testament California
The nursing home dr says my mom is incomptent to do a will. She knows who she is where she is knows her multiplications even.
Do we need a doctors note on competancey or can a lawyer determine it? What is the criteria for deciding if she can do the will by the lawyer? My mom got 18 out of 30 questions from her dr on a dementa test. Thanks |
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I would contact a lawyer. My mom changed her will after having a severe stroke. We didn't even ask her doctor about it, it's none of his business. The lawyer told us as long as she was aware of what she was signing and understood the contents that were read to her before signing it that she was competent. We used the lawyer that she had done business with (real estate and wills) before.
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 Originally Posted by flossie
If a Doctor says a person is incompetent and then a Will is executed it can very easily be set aside on those grounds - incompetence. You didn't ask so it's not an issue UNLESS someone contests and medical records are checked. I get into a couple of these situations a year and end up interviewing roommates, medical staff, Physicians in order to determine competency. At least in NYS whether a person is or is not competent is the DOCTOR'S decision, not the ATTORNEY'S. If it comes down to it the Doctor will prevail. Of course, if no one has a problem with the Will - then there's no issue. |
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[QUOTE=rene2008]The nursing home dr says my mom is incomptent to do a will. She knows who she is where she is knows her multiplications even.
Do we need a doctors note on competancey or can a lawyer determine it? What is the criteria for deciding if she can do the will by the lawyer? My mom got 18 out of 30 questions from her dr on a dementa test. Knowing where you are and being able to do math does not indicate competency. The question is whether she would/could/does understand that she is executing a Will and what the terms in that Will are... or are not. An Attorney cannot determine competency - he is not medically trained. A Doctor can. Dementia and competency are also not legally the same - you can have dementia and still be declared competent in certain areas. Why are you writing a new Will now? That can also enter into the argument if there is a contest. For example, IF your mother's old Will divided everything equally among her 3 children and now it leaves 1 child out and divides everything between the other 2 and the Doctor has said she is incompetent... there will be a Will contest and the last Will will "probably" be set aside. |
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Hi thanks all for the replies. She never did a will and I have been told 3 times in the last yr and a half she may not live during the night, then another month and then she had a heart attack.
I have two siblings who have not seen her once in 1 1/2 yrs and they haven't called but once last Aug. Actually I called him and told him to call her. They are on drugs and plus I am on social security and she can give her home to a child who is disableled as medicaid won't do the real estate recovery meaning they take all the money from the house. My mom knows who is running for president and has a excellent memory too. Her doctor is no good and I can't find another one. |
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Originally Posted by rene2008
If the Doctor has said she is not competent and she executes a Will anyway and it is questioned I think you will have an uphill fight because (as I understand things): you are the only one there and she in theory is under your care, control and influence; you feel your siblings should not be entitled to inherit - you have not said what your mother thinks. Is it the intention to leave the home to you (because you are on SS)? Or is there something else involved to be passed to you? The fact that she knows who is running for President and has an excellent memory does NOT make her competent. If you don't believe the Doctor then you will have to find another one who does think she is competent. But be prepared if things get nasty to have the first Doctor - if his name is found out - to be called in to the hearing and then the Courts will decide. In law presumably the Doctor has no side to this - he benefits nothing if he says she is or is not competent. You will need an Attorney to prepare and execute the Will - have that Attorney go in and speak with your mother and see what he/she thinks about her competency. |
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Hi It is personal for the reasons she wants me to have the house anyway the state will take it away per the recovery for medi caid to repay all her medical bills after she dies.
I did have a dr call me a yr ago when she was in a good hospital and said she WAS competent and he was a young psychologist who I didn't even request. She was worse then then she is now. I don't know who he was and my mom had 3 rotating doctors every 3 days plus as the house has been empty for 1 1/2 I wasn't trying to get the house only focusing on my mom. Don't think my brothers will find out she died and I don't know when one is who is in and out of jail and homeless and the otherone I tried hard to get his number and got it but no longer have it-he has mine. Anyway revealed more then enough personal stuff. What requirements are for competancy? |
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Originally Posted by rene2008
There are no "set in stone" requirements - it's a basic ability to understand a situation, understand the consequences, know - and explain - what you are signing. It's pretty subjective. Did you ask the Doctor if your mother could sign a Will or did he just volunteer that she was not competent? I'd get an Attorney in on this. (No need to post personal info if it makes you uncomfortable.) |
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[QUOTE=rene2008]Thanks again for your help. I will talk to a lawyer. I do feel the nursing home likes to say as many patients as they can are incompetent just in case the patient says an aid did something to them etc.
Hmm - never thought of that angle. You could very well be right. If you get a chance, come back and let us know how this works out. We always like to hear the result, particularly if it's a good one. |
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