Jun 1, 2008 12:00 PM

, By Celia R. Clark

By Celia R. Clark

Often, estate planners and elder law attorneys are faced with the challenge of trying to protect an aging client who's gradually descending into dementia or becoming emotionally needy, making him vulnerable to unscrupulous caregivers, friends and relatives. Typically, while the client is still in full control of his mental functions, he wants to ensure that his testamentary plans won't be changed if he later becomes vulnerable. But he's equally adamant about not stripping himself of control over his assets unless he's certified as incapable of managing them (that is to say, completely disabled).

These competing desires create a serious dilemma: If the client retains the power to revoke or amend his estate plan, when he becomes vulnerable a third party might exert undue influence to persuade him to make changes contrary to his original (and presumably true) intentions. But depriving him of such power when he's vital frustrates his desire for autonomy. Also, irrevocably transferring the client's control to a fiduciary may create difficult gift tax issues.