If You’re Under a Guardianship, Can You Still Make a Will?

Guardianships and conservatorships are used to protect people who are unable to handle their own affairs. Before imposing a guardianship, a court has to find that the protected person (Oregon uses this term instead of “ward”) does not have full capacity to handle his or her own affairs. Is that finding enough to take away the protected person’s right to make a will? The answer in most states is no, but the protected person might be found incapable on a case-by-case basis. A recent case from Washington illustrates the situation.

In 1997, a protected person was placed in guardianship because of a combination of medical and mental health problems. The protected person disputed that he needed a guardianship, and over the years, several guardians had difficulties as a result.

By 2001, the first guardian had resigned, and the protected person asked the court to allow him to participate in the selection of a new guardian and to limit the next guardian’s powers. While that petition was pending, he signed a will in favor of a proposed guardian, a nephew, his brother, a friend, and another person whose relationship was not stated. The witnesses signed an affidavit that he appeared to be of sound mind. The proposed guardian was named as the new guardian, with limited powers.

In 2002, the protected person married his longtime girlfriend, but he never changed the will. (After his death, the marriage was challenged on the grounds that he was incompetent, but the court ruled that it was too late to raise the issue.)

After the protected person died in 2011, his sister and his widow both filed probate proceedings. The sister denied there was a valid will and disputed the marriage. The widow acknowledged the will but asserted her rights as a surviving spouse to part of the estate before the will was applied.

The case reached the Washington Court of Appeals. It compared the laws discussing capacity to be put under guardianship and capacity to make a will, and decided that the laws set different standards. For a guardianship, the law requires the protected person be incapable of managing his or her own affairs. The capacity to make a will, on the other hand, is a lower standard: understanding of the general nature of one’s estate and the people who might be expected to be named as beneficiaries, and the ability to make a plan to leave the estate. The court, when creating the guardianship and when changing guardians, never made any rulings regarding the protected person’s capacity to make a will. The trial court was ordered to hold a hearing to decide whether the will was valid.  That will probably happen later this year.

The rule in Oregon is similar. Many years ago, the courts approved the will of a patient at a mental institution based on his statement describing how much he understood his estate to be worth and the name of a relative to whom he wanted to leave it.

If a protected person really is incapable of making a will, the law allows the guardian or conservator to ask the court for petition to set up an estate plan, preferably based on any information about his or her wishes that can be obtained from prior statements.

Unfortunately, regardless of the protected person’s actual capacity, if someone disagrees with the will, there’s a chance for a dispute. Any protected person who wants to make a will should consider consulting a lawyer in advance. A smart lawyer will probably take careful notes and may recommend an evaluation to confirm the protected person’s competence before having the will signed. Similarly, if a guardian suspects incapacity and wants to ensure that the protected person’s known wishes are carried out, it may be necessary to ask the court, and a lawyer will probably be necessary to ensure the court rules the new estate plan is necessary. If the protected person makes a will without preparing good records, and someone does have suspicions about his or her competence, it will probably be necessary to collect as much information as possible and discuss matters with a lawyer before challenging the will.

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