Court Declares Marriage by Incapacitated Person Void

April 19, 2022 By

In a recent case in Nassau county before Judge Gary Knoble the Commissioner of the Nassau County Department of Social Services brought a guardianship case pursuant to Article 81 of the Mental Hygiene Law. The issue presented to the court was to determine whether to set aside advanced directives executed in 2019 by Nancy Kay, an alleged incapacitated person. In addition, whether the marriage of Nancy Kay in 2020 between Nancy Kay and the individual who had a cross petition should be set aside on the ground that Nancy Kay lacked the mental capacity to enter into a marriage. The issue presented was whether there was clear and convincing evidence or a preponderance should be applied by the court in determining these issues.

Justice Knoble held Nancy Kay was a victim of elder abuse. The cross petitioner had taken advantage of her. She was suffering from dementia. Justice Knoble took note it is unusual for a court in an Article 81 guardianship to be presented with the issue of setting aside a marriage. In this case, pursuant to the Article 81 guardianship proceeding the court had appointed a guardian for Nancy Kay. The Guardian found her to be an incapacitated person. Judge Knoble therefore declared her marriage null and void on the ground that she lacked the mental capacity at the time the marriage was entered into to knowingly and intelligently enter into the marriage.

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm represents clients in all aspects of wills, trust and estates in estate cases. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Guardianships Tagged With:

Happy Thanksgiving

November 25, 2021 By

Happy Thanksgiving 2021

This Thanksgiving, we are immensely grateful, that with all the changes in our world, we have friends and family with whom we can gather. Let us take time this year to live in gratitude for the bounty we experience all around us.

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Happy Halloween!

October 29, 2021 By

Happy Halloween

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Donative Intent Established Pursuant to Transfer Documents and Deed

October 6, 2021 By

Donative Intent Established Pursuant to Transfer Documents and DeedIn a case before Surrogate Peter Kelly, sitting in Queens County, a son named Charles was appointed a limited administrator. He was authorized to bring an inquiry regarding his brother John’s actions and the return to the estate of real estate titled in John’s name. The decedent died in 2018 leaving 5 children. John took action to have his brother Charles’ proceeding dismissed. This action was to set aside a 2010 deed under which the decedent transferred title to her home from herself to John, as joint tenants with right of survivorship. There was also a second deed in 2013 in which the decedent named John as a sole owner of the house.

Motion Practice In The Case

A motion was made for summary judgment claiming there were no issues of fact. Judge Peter Kelly rendered a decision that John established his prima facie burden of showing donative intent on the decedent’s part. He did this by submitting copies of the transfer documents related to the deeds and the testimony of the attorney who prepared the deeds, transfer documents and oversaw the execution of these documents.

The Courts Decision

The court held Charles’ submission of a handful of medical records showing the decedent struggled with agoraphobia and passing references to Alzheimer’s disease did not establish an issue of fact as to the decedent’s capability at the time of the questioned transactions to effectuate these transactions.

The Deeds Were Upheld

The deeds were upheld and the challenge related to this estate was dismissed.

Filed Under: Wills Tagged With:

The New Power of Attorney Form in New York

July 29, 2021 By

The New Power of Attorney Form in New YorkOn June 13th of 2021 the new power of attorney form in New York went into effect. This form does not make older powers of attorney obsolete. However, all powers of attorney executed after June 13, 2021 must be on this new form.

Action To Be Taken If Bank Doesn’t Accept It

Under the terms of this new power of attorney, if a bank or other financial institution refuses to accept it, a law suit can be brought against the bank. If the court finds in your favor that the bank improperly rejected the power of attorney, the court can award financial monetary damages as well as your attorneys fees.

The basic statutory gifting amount has been increased from $500 per year to $5000 per year. There is no specific statutory rider requirement in effect in New York with regard to powers of the agent to make gifts.

Agent’s Duties

The agent must maintain records when he or she uses the power of attorney on behalf of the individual who made the power of attorney. An agent must keep a record of all transactions conducted for the principal or keep all receipts of payments and transactions conducted for the principle.

The agent will be considered a personal representative of the principal for health care matters. Health care plans and healthcare providers must provide the agent with the necessary information needed to determine the legitimacy and accuracy of all financial charges and expenses for health related services.

Elliot S. Schlissel is a member of the National Academy of Elder Law Attorneys. He has been working with seniors for more than 30 years.

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm represents clients in all aspects of wills, trust and estates in estate cases. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Power of Attorney Tagged With:

Season’s Greetings and Happy New Year

December 24, 2020 By

Season's Greetings and Happy New Year

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Happy New Year 2020

December 23, 2019 By

Happy New Year 2020

May the holiday season fill your home with joy, your heart with love, and your life with laughter.

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Lost Will is Presumed Destroyed

September 26, 2019 By

Lost Will is Presumed DestroyedIn a recent case the administrator of an estate tried to probate a copy of a decedent’s will. The son challenged the probating of a copy of the will. The court rendered a ruling there is a presumption that a will in the possession of a decedent which cannot be found after his or her death was destroyed by the decedent.

New York Regarding Missing Wills

The law in New York is clear that there is a strong presumption a will that was in a decedent’s possession cannot be located after his or her death was destroyed by the maker of the will. Destruction of the will revokes the will. In cases where the decedent is in possession of his or her own will and the will isn’t found after they die, a copy of the will cannot be probated. If the individual dies he or she does not have to advise anyone that they destroyed the will. The very fact that the will is not found to be in the possession of the decedent after his or her death is sufficient to establish that the will was revoked.

schlissel-headshotElliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm represents clients in all aspects of wills, trust and estates in estate cases. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Wills Tagged With:

Guardianship Denied

July 31, 2019 By

Denied guardianshipA guardianship case was brought in Kings County before Surrogate Margarita Lopez-Torrez pursuant Section 17A of the Surrogate’s Court Procedure Act.  In this proceeding the petitioners asked to be appointed guardians of Elit.  Surrogate Margarita Lopez-Torez found this would result in the complete removal of Elit’s legal rights to make any decisions over his affairs.  Justice Margarita Lopez-Torrez ruled a court was not allowed to limit or tailor a guardianship’s scope to Elit’s specific needs.  She held that Article 17A guardianships are distinguishable from Article 81 guardianship that can expressly provide a tailored approach to meet the alleged incompetent’s personal needs.

The Judge’s Ruling

Surrogate Margarita Lopez-Torrez ruled the legal standard was not that petitioners could make better decisions than Elit.  The standard was does Elit have the capacity to make his own decisions.  Surrogate Lopez-Torrez found the evidence presented to the court did not show Elit had an inability to make decisions on his own with regard to supporting himself.  She stated no actual harm resulted from the decision making shown by the evidence presented to the court.

She also stated there was no harm to Elit which would be prevented by the appointment of a guardian.  Surrogate Lopez-Torrez found Elit was an adult with some cognitive limitations, but she found Elit had decision making capacity which allowed him to manage his own affairs with the sufficient and reliable support of family members.  Elit was already consulting with the petitioners with regard to the managing of his affairs.  In the end Surrogate Lopez-Torrez found imposing a guardianship of Elit was not in his best interests.  The petition to be appointed guardian under Article 17A of the Surrogate’s Court Procedure Act by the petitioners was dismissed.

Conclusion

There are 2 types of guardianship.  One under 17A of the Surrogate’s Court Procedure Act and the second one under Article 81 of the Mental Hygiene Law.  In this case a guardianship under Article 81 of the Mental Hygiene Law had a better chance of success than the procedure brought under Article 17A of the Surrogate’s Court Procedure Act.

Elliot S. Schlissel, Esq. is a guardianship caseguardianship lawyer.  He represents individuals regarding  guardianship issues throughout the Metropolitan New York area.  He has been dealing with guardianship matters for more than 30 years.  He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Guardianship Cases, Guardianships

Administrator of Estate Removed

July 17, 2019 By

In a case before Surrogate Melinda Malaze-Gonzalez, who sits in Bronx County New York, a son who was co-administrator of an estate asked the court to remove letters of administration issued to his sister, the decedent’s daughter. It should be noted the co-administrators were the brother and sister and the sole beneficiaries of the estate.

The Estate Had Real Estate Assets.

The primary assets of the estate were real estate holdings. The brother and sister had entered into a stipulation. The stipulation called for each on them to be co-administrators of the estate of their parent. The court granted letters of administration to both the brother and the sister. There were restrictions in the letters of administration concerning the real estate owned by the decedent.

Brother Seeks To Remove His Sister

The brother brought a legal action seeking to remove his sister as the co-administrator of the estate. The sister failed to retain an attorney to oppose her brother’s proceeding to have her removed. Justice Malaze-Gonzalez found the son’s allegations were not in controversy. She also found the sister’s refusal to take necessary steps to collect and distribute the estate’s assets was in violation of her fiduciary obligations. In addition, Judge Malaze-Gonzalez found a failure to state any reason why the assets of the estate should be retained constituted the basis of granting the son’s application to have her removed as the co-administrator due to her failure to understand what her fiduciary duties were.

schlissel-headshotElliot S. Schlissel, Esq. is an estate’s lawyer. He represents individuals probating wills, challenging wills, filing intestacy proceedings and all other estate related matters throughout the Metropolitan New York area. He has been helping his clients for more than 3 decades in these endeavors. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.

Filed Under: Estate Attorneys, Probate Tagged With: , ,
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