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Medicaid Law: Protecting assets while qualifying for Medicaid

Medicaid Law and Protecting Your Parent's Assets Page #2

Using The Durable Power of Attorney

Retiring Better for Less    

When to Contact a Nursing Home Attorney  

Alzheimer's Disease-Legal Issues to Consider

Social Security: Can I get it now?

Medicare: How will it help me?

Medicaid Program: What do I need to know?

Family Trusts and Conservatorships- Remedies to Reverse Undue Influence

Caregiving Articles of Interest:

Is Elderly Care at Home the Best Choice?

Caregiving- Families Don't Always Play Fair

How The Sandwich Generation Can Help Their Parents Create a Legacy of Meaning  

Five Things You Must Do When Traveling With Older Parents   

Senior Parents Living Alone   

The Life Cycle - Taking Care of Your Parents   

Home Care Training Increases Effectiveness of Caregivers

Alzheimer's Disease

Cancer: A Death Sentence for the Elderly?

Depression among the Elderly

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Family Trusts and Conservatorships - Remedies to Reverse Undue Influence

By George Dickerman 


This brief article describes what remedies are available, through conservatorships, when an elder has been unduly influenced into changing their trust's beneficiaries.

A person makes a family trust to accomplish a variety of things, both during and after their life. After death, their trust primarily serves to distribute their property and money to loved ones. During their lifetime, an elderly man or woman may become mentally incapacitated and require the establishment of a conservatorship so the court can appoint someone to have authority to make sound financial and healthcare decisions.

During this conservatorship process, it is often discovered that the elder had previously prepared a trust that named certain family members as beneficiaries. It may also be discovered that the elder, during a time when their mental capacity was questionable, made an amendment to their trust that disinherited their family members and named new beneficiaries. If this amendment were the result of undue influence, then the court can remedy the problem by ordering a "substituted judgment".

Most courts, including my hometown in Riverside County, California, will bend over backwards to honor a person's testamentary wishes as instructed in a trust document. Substituting the court's interpretation of that person's wishes, when two competing documents exist, is a difficult task and requires overwhelming evidence to prove the true intent of the elder.

The court will take into account many facts and circumstances in making its decision. Witnesses can be called to testify to the elder's mental state during the time that the original trust and amendment were created. However, the most compelling proof may be found in the elder's medical records at the time of the purported amendment.

During this time, the elder may have begun suffering from short or long term memory loss, or been diagnosed with dementia or some stage of Alzheimer's disease. Their doctor may have prescribed psychotropic medications - mood altering drugs to slow down the symptoms of mental incapacity.

Additionally, evidence of the relationships between the elder's family members (original beneficiaries) and the new (purported) beneficiaries can be presented. The new beneficiary may be a caregiver who has lived with the elder at their home in order to provide companionship care. This new relationship may have existed for only a few months before the trust amendment was made. An elder, with diminished mental capacity, can quickly be taken advantage of in this fashion. Discovering the identity of the person who drafted the trust amendment, how the elder was introduced to them and the circumstances surrounding the actual signing of the amendment, can provide significant proof of undue influence.

Substituted judgment is one of the remedies available to invalidate wrongful amendments to family trusts when an elderly victim is under a conservatorship. Time is of the essence and will require an elder law attorney who is experienced in issues involving elder financial abuse.

By: George F. Dickerman, Esq.      George F. Dickerman is an elder law attorney in Riverside County, California, practicing law for 23 years. To learn more about elder law issues, including substituted judgment, and to subscribe to a free newsletter that provides valuable information on how to assist your family members or loved ones, please visit


Additional Information and webpage by Paul Susic MA Licensed Psychologist Ph.D. Candidate         

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