From our “Ask a Question” mailbag: My father has been diagnosed with the beginning stages of Alzheimer’s. He is having some memory issues, but is still doing very well on his own with one exception. My brother has always been the black sheep of the family. He has never held a steady job. He recently declared bankruptcy and has been pressuring my father to give him money and to change his will to give my brother more money. My father and my deceased mother’s wills have always divided their estate equally between the four children. My father has told me that he does not want to change his will, but that he is worried that as the Alzheimer’s progresses, he may give into the pressure my brother is putting on him. How do I protect my father from my brother’s undue influence?
The first step must be your father recognizing that there is a problem and that he is willing to take steps to protect himself and to preserve his estate plan. While he remains legally competent he is free to alter his estate plan, but as the effects of his Alzheimer’s increase, any changes may prove fodder for litigation. In general, there are two useful alternatives that he should consider that will give him protection.
First, if he is willing to give up control of his assets, the best option might be to create an Irrevocable Trust naming you, or you and a sibling, or a neutral person as Trustee. Your father would be the only beneficiary during his lifetime. At his death, all remaining assets would be divided equally between his children. By transferring his assets into this trust he has given up the ability to alter his estate plan in the future. No matter how much pressure is put on him, at his death the assets will be divided equally.
Second, if your father is not willing to give up complete control over his assets, he could form a Revocable Living Trust to hold his assets. He then could remain the trustee or, he can name someone else as the trustee but he would have the power to remove and replace them at any time. The Revocable Trust would say that he is the only beneficiary during his lifetime, but at his death the remaining assets are divided equally between the children. The flaw in the Revocable Living Trust is that your father could change the trust at any time. If his Alzheimer’s progresses and he is pressured, the undue influence could result in an amended trust giving your brother a larger share.
We can draft trust terms to address your father’s concerns and stay within his comfort level. The best way to begin if is for me to speak with your father directly to determine his concerns, what assets he wishes to protect and what trust best fits his estate planning and asset protection goals. This would be a free consultation, so nothing is lost by him in just speaking with me!
If you have any other questions about Asset Protection, Undue Influence, Estate Planning, Revocable Living Trustsor Irrevocable Trusts, feel free to contact our office for a free consultation with on of our Pennsylvania Estate Planning Attorneys.