Can a lawyer deny changing of a trust?

Robertalr asked...

My 87 year-old mother wants to remove one of her trust's beneficiaries (non-family member). I, her daughter and power of attorney completely agree with her decision. Mom has mild dementia and unfortunately, does not remember her lawyer's last visit, therefore they are denying any changes to her will at this point although she has not been declared incompetent. How can this be overruled by Mom and/or me?

Expert Answer

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your mother has the legal right to change her will and trust provisions as long as she has the mental capacity to do so. To pass the test for mental capacity, the law requires that she must know:

  • the extent and value of her property
  • the people who are the natural beneficiaries
  • the disposition she is making, and
  • how these three things relate to form an orderly plan of distribution of property.

In reality, this is not a very rigorous test to meet—and it is very unusual indeed for a lawyer to decide that a client lacks the capacity. All that matters is that the client must have the required mental capacity on the day and time that the will is signed; even those with dementia or who have had a guardian or conservator appointed can still legally change a will or trust, as long as they were able to satisfy the four elements mentioned.

In ensuring that a client has the required mental capacity, lawyers are sometimes told to ask:

  • What property do you own?
  • Who are the natural heirs?
  • What do you want to give to whom?
  • Do you understand that you are going to be signing a will?

If your mother is able to answer these questions, this should be proof of that she has the required capacity. While it is good that both you and the agent appointed as your mother’s power of attorney agree with the change, it is irrelevant from a legal standpoint.

In most circumstances, I would mention that people with legal capacity are free to amend their own wills and trusts as long as they go through the proper procedures for witnessing and finalizing them. However, in your mom’s case, since there has already been some question for some reason, it might help to avoid later legal challenges to have a lawyer involved in amending the will and trust.

If your mom has the required legal capacity, have her hire a lawyer who will do as she wishes. If she truly doesn’t have the legal capacity, then it may be too late to make the change.