Failing Capacity and Vulnerability

Our probate and guardianship litigation section routinely encounters many of the same facts that make up a will contest or a contested guardianship. The circumstances are always unique, but so many of our clients are involved in cases that look and sound like each other with regard to two major themes. A high number of our cases require significant analysis of a person’s mental capacity and/or the vulnerability to the undue influences of others.

I started thinking about both of these areas when my family was together for the Thanksgiving holiday. A relative asked me if our practice area saw a “busy” time of year. I told him that we’re gearing up for it right now, and the holidays play a big part of that. For many families, the holidays at the end of the year might be the only time of the year that they see each other and spend any real time together. For some of these families, this means that they may learn (for the first time) that mom/dad/grandma is not doing well, or struggling to get by on their own. Consequently, this realization often leads to a number of calls and inquiries beginning at the first of the year.

So with that merry backdrop to add to your holiday cheer, I thought that I might put together a quick list of warning signs that may indicate your loved one is having some trouble taking care of things, or that they may be susceptible to the influence of people looking to take advantage of them. Some of the more common warning signs include:

• Excessive reliance on a third party to provide basic information (evidencing a loved one’s failing memory);

• Covering or masking – a practiced technique by loved ones to avoid answering questions by making glib responses or changing the topic;

• Significant mood swings;

• Unreasonable suspicions (such as that a family member may be stealing from them, or trying to hurt them); and

• Unusual reliance on another person for basic needs, including the activities of daily living (food, clothing and shelter).

Clearly, even these warning signs may not indicate that your loved one is faltering, or that they are vulnerable to someone with bad intentions. But virtually all of our cases involve one or more of just these basic fact patterns, and they may be more common than you think. Take the time this season to really communicate with your loved one and gauge where they are. Their safety is worth it.