First, he is in AL with suspected dementia but no clear diagnosis yet. He's in what you might call the "paranoia phase" of memory loss where he forgets things and then accuses others of doing stuff behind his back, moving things, not letting him access to things, etc.
He claims he has a lawyer now (but he keeps CC'ing the lawyer on emails without actually including the lawyer's info. He just writes "cc" and a name, like James Smith Esq on the bottom — and I checked the name and there is nobody in our state who is admitted to the bar with that name, nor is it the lawyer he had in his old state — plus she's retired, because I found that out when I sold his house)
I am … not ready to give him the original document. He has thrown away and destroyed a bunch of stuff in AL already (including an iPhone!) and I'd rather keep the original until he has a new will, and then, if needed, destroy it.
I decided to send him a copy because if he truly is making a new will, a copy should suffice (at least this is what a lawyer friend tells me).
He says I am obligated to give him his original will. My husband and I think we should just keep stalling with copies. (He's always asking for documents and statements and copies of bills and that's what I've done in the past, most of which he's lost or thrown out).
I think I'm on okay legal ground here— my lawyer friend said that keeping his original will in a safe place is the best option, and that means with me. But morally, ethically, I'm conflicted.
Would you give him the original will? He's really angry.
I met a man a while back determined to change his will. Out with Son - in with latest Nephew or something similar. (Son was being 'controlling' & become a 'thief' in his eyes). He was also at the *stolen stage* (hidden/misplaced items). His son insisted on a neuro-psych exam. Testing revealed the extent of his memory, judgement, processing & planning cognitive problems. among other observations he was passed as being capable of SMALL financial transactions (day to day shopping) but NOT for LARGE transactions eg buying/selling property.
He stated he wanted to change POA to a nephew - yet when asked who he wanted to make financial decisions for him if he could not do it himself, he answered clearly "My son".
I did not hear the actual outcome to his legal ability to change his WILL or POA. But even untrained as I am, I could see the disconnect with his reasoning.
I wonder if your Dad is kind of in the area?
But I also guess a legal professional has procedures to follow if cognitive problems are suspected? Maybe some with legal knowledge know more about this? I image those with good vocab & showtiming skills slip through to succeed.
But what to do now.
Give him his will or not? 🤔
How about truth + stall + investigate before action?
"Dad, I've been a little concerned about things going missing in your room." (Truth) "So I'd like to look into getting a safe box or something similar".
(Small white lie to stall)
"By the way, that doctor appointment is coming up".
(Make that true)
That may be a general doctor for a dementia screening test, or the next step, for longer neuro testing.
Yes he has rights to his own documents, so I feel bad for stalling & a white lie.. but I think an average person would be cautious like you, based on the behaviour you described & it would be reasonable to delay until some clarification on his decision making powers has been made.
Or do you not want him to see what is on the original will because he may be confused by it? What is he opposed to on the will?
Did he tell you what specific changes that he would like to make?
Have you explained to him that he can write a codicil to accompany his original will?
I wouldn’t hand over the original will to him if he will lose it or destroy it.
Best wishes to you.
He does, however, need to be of sound mind to make a valid will at all. Is he? Would a lawyer be satisfied that he is?
If he is of sound enough mind to change his will, he can handle it himself. If his dementia has obscured his abilities and judgement too much and he’s in the raging at loved ones dementia stage, he shouldn’t be changing anything.
What if you ask for the new lawyer’s name and address, telling him you will then courier it directly to insure it does not get lost and so his new lawyer can have time to review it before they meet? Puts the onus back on your father. My mother raged about things after having lost the capacity to make sensible decisions.
Keep the original in a safe place, like a fireproof box.
I am in Canada and we do not have to surrender a will to make a new one. And a codicil can be added to make minor changes. I found multiple wills in my mother’s house as she had hers redone upon the death of my father, the death of my husband and my remarriage and birth of my children. I am keeping all, and will refer to the most recent upon her death.
He doesn't need his will to remove you as executor. He can have a new document drawn up superseding any old one. This so speaks dementia to me. I am sorry you are going through this. Does he have a new person, a good alternative for executor? Franky I wish my mother had. Life would have been easier for me.
My mom kept adding little 'afterthoughts' to her will, they were not 'pleasant' and sadly, I read them and they were basically posthumous slaps in the face.
That's likely what your dad wants to do--and honestly, after reading what mom had added (not legal by any act) my heart is still hurting, at some level. She was mad or disappointed in me, but I will never know why.
In the end, the will/trust that she and dad did together was the one they made 20+ years ago and that was the one that was honored.
Thank goodness for my YB who was FPOA. He 'cleaned up' the will, and with the help of an attorney, reinstated the original 'meaning' of the will--what DAD and mom together chose to do. YB knew that these little 'jabs' were meant to hurt my other YB and me, and he didn't know why either.
This has made it kind of hard to grieve her passing. I know she was 'mad' at me, or disappointed and I don't have any clue as to what I did.
This dynamic actually made it very easy for me to rescind my 'inheritance' and give it to my YB who cared for her in his home for the last 18 years, the last 7 being very hands on and draining.
I am very glad that my YB never knew of these 'additions'. He cared for her for so long with zero remuneration. Yet she was 'billing' him for over $6K to be paid back to the estate.
This kind of thing happens all the time.
If your dad has had no official diagnosis of dementia and no one is his POA then he has every right to change his will if he wants to.
There are always 2 sides to every story, well actually three, your side, his side and the truth.
I can't help but be suspicious here as to why you don't want him to change it unless it involves removing you. Does he have good reason to remove you?
I wouldn’t give him the original. In fact, I’d probably put it in a bank safe deposit box. But I’m sure that if he wants to change his will, he can hire a lawyer to come to his assisted living home and do it there. It’s up to the lawyer to decide if dad is capable to sign. Also dad could download internet forms and create a will himself, having it notarized at the facility or the UPS store. In my state, a handwritten will is legal.
Just things to think about.
I do not think you "need" an original Will in order to draft a new one, the old one would be void with the drafting of the new one.
I would get him to a doctors appointment and when you schedule the appointment say you need testing for his cognition. the "problem" with that is it will probably not be able to be done in that 1 visit, the doctor would probably refer him to a Neurologist.
And to echo other comments..do you have POA?
If he is declared incompetent you may not get a lawyer that will let him appoint you POA and that may leave Guardianship. (If he can grasp some understanding the lawyer may determine that he is cognizant enough to appoint a POA)
Stalling is what I would do... just tell him you're looking for it, then change the topic. Keep redirecting the conversation.
Do not give him the original. Tell him if he can get u an address for the lawyer you will send him the original. Important papers like a Will should not be lying around his room, tell him. May get lost.