Legal Question in Elder Law in Massachusetts

Dementia spouse right of election

My father died recently. My mom who has dementia wants to waive her right of election against my dad's estate. She wants me, her only child to have her 1/3 share. She has mild to moderate dementia. She is articulate, able to reason and of course forgetful. The executor of the Will is using an attorney (not an elder care attorney) who felt compelled to tell the court of my mom's condition and therefore appoint a Guardian Ad Litem to protect her interests & petition the court to exercise her Right of Election to take against my dad's Will. Two elder care lawyers I consulted disagreed with the attorneys decision to appoint the Guardian Ad Litem. They both told me it was unnecessary. The non elder care attorney who represents the executor of my dad's Will actually called me and was extremely angry that these two elder care attorneys would even suggest that a Guardian Ad Litem was not needed. Who is right? Is the Attorney for my dad's Will forced to tell the court re: my mom's condion which would lead to the appointment of a GAL? This Attorney also told me that when the Executor answered a question referring to my mom's ''control of her facilities'' his answer automatically let to the court having to appoint a GAL.


Asked on 5/21/04, 9:09 pm

1 Answer from Attorneys
Daniel DeBruyckere DeBruyckere, Petrillo, Fulton & McNamara, PLLC

Re: Dementia spouse right of election

You must remember that the 'estate' attorney represents the executor. Unless the devisee's physician could certify her capacity to make such an important decision, It would extremely risky to go forward without a GAL.

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Answered on 5/24/04, 10:17 am


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