Kansas City, MO asked in Estate Planning for Kansas

Q: Why is it that a mental evaluation is required to prove that the elderly person has been conned into signing a trust?

Why is it that a mental evaluation is required in order to prove that an elderly person has been conned into adding a POD on their banking account?

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1 Lawyer Answer
Scott C. Stockwell
Scott C. Stockwell
  • Estate Planning Lawyer
  • Lawrence, KS
  • Licensed in Kansas

A: Kansas has statutes and case law that recognize that undue influence and manipulation of an elderly person is wrong. In some instances, it is a crime. In some instances, the court has the power to right the wrong. In both instances, the court's job is a difficult one. As all people age, their ability to resist influence diminishes; for some dramatically, for others little if any, and for the rest, they will fall anywhere on a spectrum. We are all "influenced" by other people. When does that influence cross over a line into "undue influence?" Whether undue influence has occurred is, as was observed by one judge, a very fact-intensive determination. As the same judge also observed, evidence of undue influence is largely circumstantial. The influence usually does not take place out in the open.

The law cannot treat elderly persons as though they no longer have free will. To the extent possible, elderly people should be able to make decisions. A mental evaluation is not "required" to determine competency. It may be considered by an attorney contemplating a court case to be possibly compelling circumstantial evidence.

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