Using a Power of Attorney To Change A Will While In Hospice Care

Hospice Care

Hospice Care

While in hospice care, making changes to an estate plan in Minnesota is a very tricky process.  Unfortunately, using a power of attorney form to execute a change has the potential of failing and failing miserably.

Even worse, our source of truth comes from situations when people have tried and died.

Mental Capacity While in Hospice Care

In Minnesota, the intent of the person dying is still the controlling factor.  In other words, when a will is reviewed by a probate court, the court looks at the mental capabilities of the person who intended a will, and later died.

Right or wrong, reviewing the mental capacity of an attorney-in-fact (the person granted responsibilities through a power of attorney form) seems unfavorable.

Why?  For one, there was a major case in Minnesota called In re Estate of Healy.  Ultimately, this case tells us the testator (the person who died) is required to know the nature and extent of the document they are signing.  If even for a brief second, the person dying and wishing to change their will must have a thought in their mind long enough, that a rational decision can be made.

What makes this situation very difficult, is the lack of evidence and the attorney-in-fact having a fiduciary duty to every beneficiary or potential beneficiary under the sun.

Evidence for a Hospice Care Estate Plan

As I mentioned, evidence for the mental capacity of a person receiving hospice care is difficult.  The real source of truth is going to be a doctor’s opinion, medical notes and eye-witness accounts.

For this reason, having a medical opinion or notation made on whether a person has the mental capabilities of rendering a decision is likely going to be a significant factor for families making changes to an estate plan in Minnesota.

Hospice Care and Undue Influence

When folks take time to research past situations when a power of attorney signed or changed an estate plan, a common theme for situations gone bad is undue influence.  In other words, the person making the change is having a negative influence on the person needing care.

For those who have done their research, perhaps the gray area is when the situation includes a detached attorney-in-fact and a person who is the exact opposite of the guy in this case.

Another example of undue influence is as simple as looking in the mirror.  Being sick and in pain is a horrible position.  When I am sick and in pain, I am far more likely to agree to something without thinking because my mind is elsewhere.  Likewise, imagine a person receiving hospice treatment.  Again, Minnesota’s probate courts see this too.

Therefore, using a power of attorney to change a will or estate plan in hospice care is an undesirable process.

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