Domicile is a relatively straight forward legal concept that combines the place where a person permanently resides with where he intends to remain. However, what happens when a person who has been adjudicated incompetent desires to permanently move. Can he possess the requisite intent to change his domicile in legal terms? The Georgia Court of Appeals recently took up this question in Estate of Milton Theophilus Pond, II. In the case, a probate court granted Milton Pond guardianship of his son, M.P., who was an adult man with autism. Since M.P.’s childhood, he lived with his mother,…
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Four Legal Documents Dementia Patients Should Have in Place
A diagnosis of dementia, which includes Alzheimer’s disease and other memory loss and/or cognitive reasoning disorders, is potentially devastating for both the patient and their family. Following a dementia diagnosis, it is important to execute these four essential planning documents to avoid further hardship in the form of costly court battles. (1) Durable Power of Attorney – A durable power of attorney allows the diagnosed person (the “principal”) to appoint another person (the “power of attorney”) to act on the principal’s behalf if and when the principal becomes incapacitated. A power of attorney can have a wide range of authority and discretion, from paying bills to selling…
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Accelerating Estate Disputes: The Living Probate Option
North Carolina joins four other states in providing a path to ensure decedents’ assets are distributed according to their wishes upon death.[1] The North Carolina General Assembly recently enacted legislation amending statutes regarding estate administration by adding a procedure for “living probate.” This action is usually commenced by a testator – the author of a will – prior to his or her death where he or she anticipates a challenge to the will’s validity. The court can now declare a will is valid while the testator is alive, thereby preventing potentially more expensive litigation after the testator’s death, when he or she is unable to…
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Six Ways to Challenge a Will’s Validity
Wills must meet several basic requirements to be valid and enforceable under state law. If any of the below factors are at work, then a will’s validity may be challenged. (1) Undue Influence Undue influence exists when a person uses coercion to influence the testator (the person creating a will) into executing a will that does not accurately reflect the testator’s true wishes. There are several red flags to keep in mind if you are suspicious a loved one’s will is the product of undue influence. Unusual dispositions of property, sickness and vulnerability of the testator to undue influence,…
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Basic Ethics of Representing Clients with Diminished Capacity
Representing clients with diminished capacity can present a challenge for even the most experienced attorney, and every client and every matter is different. Minors of the same age may have vastly different maturity levels and clients suffering from dementia may have varying symptoms and abilities to recall information or make informed decisions. For example, a fourteen-year-old may not be able to legally enter into a contract, but he or she is likely capable of making decisions and expressing opinions regarding with which parent he or she would like to live. In scenarios involving memory loss, a client may exhibit mental impairment one day and be…
