The role of a caregiver when an elderly person makes a will

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When Helena took her 81-year-old father, Walter, to the family’s lawyer recently so that Walter could have a will made, the lawyer, Ms. Rollins, asked her to leave the room while she talked privately with Walter. Helena was shocked and somewhat offended at being excluded. After all, it wasn’t as if she was there for any suspicious reason; she’d been helping Walter with banking and doctor’s appointments for years.

It occurred to Helena that it might be a good idea to find a lawyer who understood that Walter got mixed up and didn’t always remember things clearly, particularly financial matters. Surely as Walter’s caregiver and helper, she had the right to be in the room to help Walter tell Ms. Rollins what he wanted in his will? Contrary to popular opinion, Helena doesn’t have any such right, as a participant or even as an observer. While this is a tricky situation for all concerned, including the lawyer, caregivers or helpers for a senior who is making a will should not expect to be included.

Protecting confidentiality

There is more than one issue at stake here. The first is confidentiality. Every conversation between a lawyer and a client is confidential, meaning that the lawyer must keep the contents of a meeting strictly private (the client can tell whoever he or she wants). A client’s right to confidentiality does not evaporate just because the client is aging.

Walter’s lawyer, Ms. Rollins could not have given permission for third parties to join their meeting, no matter how altruistic the third party may be. Only Walter can waive his right to confidentiality and allow someone else to come into the meeting.

Ensuring a valid will

Even if Walter is willing to have Helena present, there are still a few more issues to deal with. Ms. Rollins may still not agree to go ahead if Helena is present, for reasons relating to wills and estate law. Ms. Rollins has a duty to Walter to make sure that all of the legal requirements are met so that Walter has a solid will that can withstand legal challenges if necessary.

One of the requirements of a valid will is that Walter has “testamentary capacity.” This means that Walter must understand what a will is all about and must understand (among other things) what he owns. Walter must take his responsibilities to various people into consideration when he decides who will receive his estate after his death. When Ms. Rollins is alone with Walter, she will ask him questions about his family, his finances, his plans for his estate and his reasons for making those plans. If someone else is speaking for Walter, it will be impossible for her to assess whether Walter actually does understand all of the things he needs to understand.

Speaking for yourself

Children and other caregivers of seniors who help with banking and investments may feel that they know the details of seniors’ finances better than the seniors themselves. Even if that is true, the details are less important at this stage than the ability of the senior to think and speak for him or herself. Keep in mind that it isn’t necessary for Walter to have perfect recall of every detail to prove that he has testamentary capacity. Most people, regardless of age, can’t say with any certainty exactly how much their mutual funds are worth or exactly which day their nieces and nephews were born. Experienced wills lawyers know this and take it into consideration.

Avoiding coercion or influence

Another requirement of a solid will is that Walter freely gives the instructions to Ms. Rollins without being coerced or influenced by anyone. Sometimes a helper who is speaking for a senior will tell the lawyer that the senior wants to leave his or her estate, or part of it, to the helper. This situation is common because the helper or caregiver is often the adult child, and it’s natural for parents to leave their estates to their children. But what if Helena has siblings and they are not getting anything, or are getting less? Helena might think this is reasonable because she is the one who has been helping her father and therefore should receive some reward for all that time and work. It might be an unusual situation, but it is a red flag for Ms. Rollins.

If Helena hadn’t been asked to leave the room already, she certainly would have been as soon as Ms. Rollins heard that she was to inherit something under the will. The problem is that Ms. Rollins cannot be sure that Walter’s decisions are not being influenced by Helena.

It’s common for the children of seniors to describe a will that is more what they want than what the senior wants. Sometimes there is a deliberate attempt by the child to get more of the parent’s assets because of greed or financial problems, but in most cases the child feels that the senior really isn’t thinking very clearly. The child wants to decide what seems to be fair for everyone. Regardless of the motivation, it is still a problem when the child makes these decisions for the parent.

Don’t take it personally

Helena, who is genuinely an honest individual who cares about her father, would be deeply offended if she thought Ms. Rollins suspected her of trying to influence Walter to her own advantage. But being excluded from the meeting certainly doesn’t mean that Helena is under suspicion. Far from it. Ms. Rollins’ concern is Walter, not Helena, and Helena should not take it personally. Excluding Helena just means that Ms. Rollins is not prepared to take any chances on Walter’s will being contested in court by someone who thinks Helena may have unfairly influenced him.

By keeping Helena—and everyone else—out of the room, Ms. Rollins can defend the will and prove that Walter freely gave the instructions he wanted in private.

Providing help

This is not to say that seniors never need help in a meeting. For example, seniors sometimes need someone to translate for them if English is not their first language. If this is the case, the interpreter is welcome in the meeting, but should not be someone who is going to be named in the will. Either the lawyer can arrange for a neutral interpreter or the caregiver can arrange for a family member who is not mentioned in the will to help out.

Sadly, elder abuse happens fairly frequently with wills. Because of that, wills lawyers are justifiably protective of their senior clients. Helena should be pleased, rather than offended, that Ms. Rollins is taking care to ensure Walter’s will carries out Walter’s wishes and that the will is strong enough to withstand challenges.

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About Lynne Butler

Lynne Butler, BA, LLB, has worked in wills, estates and trusts for more than 20 years. Currently the Will and Estate Planner for Scotiatrust, she is also Co-Chair of the Canadian Bar Association's Elder Law section for northern Alberta and teaches will drafting to artic!ing lawyers through Canadian Centre for Professional Legal Education

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