I am often faced with estate plan clients who display signs of lacking capacity to execute estate documents, including Florida Wills, Trusts and Powers of Attorney. Through my experience, I have a compiled list of indicators that I look for when determining if a client lacks capacity or is being Unduly Influenced. Those indicators include:
- Gifts to persons (care givers, service providers, friends) who are not the natural objects of the client’s bounty;
- Gifts to anyone that are so large, given the size and nature of the client’s estate, as to threaten the client’s economic security;
- Loans, particularly if undocumented, to anyone; extra scrutiny required if to nonfamily members.;
- Actions by client’s fiduciary (representatives, trustee, other) that reflect poor judgment or conflict of interest;
- Existence of estate planning documents naming non-family members as fiduciaries or beneficiaries;
- Existence of joint accounts with non-family members;
- Evidence that client sign checks prepared by others;
- Bequest plans or other arrangements favoring one child, particularly if a caregiver;
- Evidence of physical harm;
- Evidence of excessive dependence on a child or other person, particularly if such other person is critical to the client’s independence and/or ability to avoid a nursing home;
- Material inconsistency between client’s understanding of estate and its true value;
- Excessive fees charged by professionals (trustees, attorneys, financial advisors, stockbrokers, other);
- Unconscionable terms of loans or other financial arrangements.
This list is not all of the factors that I consider, but it is the foundation of my analysis. If you are interested in finding out more information about undue influence,I recommend that you contact an experienced estate plan lawyer.