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.

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Fighting Dementia

November 26, 2015 By

elder care attorneyThere is a growing prevalence of dementia and Alzheimer’s disease among seniors in America. Many seniors develop either dementia or Alzheimer’s which virtually fries their brain, and it can have a devastating impact upon their family.

Cost of Treating Dementia

The treating of dementia related illnesses is very costly. There is a study which claims that by 2050, $1 out of every $3 spent on Medicare will go to the treatment of dementia related illnesses. It is estimated by the year 2050, this will cost over $1 trillion dollars.

Curing Dementia

Both Alzheimer’s disease and other types of dementia are not curable. The treatment today simply slows onset of the disease. As Americans’ life expectancies increase, more and more Americans are expected to develop these illnesses.

Medical science does not know what causes dementia. However, there is some indication that people can reduce their risk of cognitive impairments by adopting certain life long habits which promote good overall health. It is recommended to people as they get older to exercise on a regular basis, eat appropriately, try to reduce stress and stay socially active and engaged. It is also extremely important to try to continue to learn throughout your lifetime.

Long Island Wills and Estates attorneyElliot S. Schlissel is an elder care attorney. He represents clients in all aspects of estate planning, drafting of wills and trusts, drafting healthcare proxies and powers of attorney.

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Guardianship Hearing in a Bedroom

January 6, 2015 By

guardianship lawyer on Long IslandBronx Supreme Court Justice Sharon Aarons started a hearing on a guardianship situation in her courtroom. The hearing was cut short and Judge Aarons and all of the other interested parties proceeded to travel to the home of Valerie L. to conduct an in home evaluation to determine whether her attorney was “chosen freely and independently by the alleged incapacitated person.”

Judge Aarons had initially set a hearing for November 25 and she had “explicitly directed that Valerie L. appear for the hearing.” When the alleged incapacitated person, Valerie L., did not appear at the hearing the judge moved the hearing to the bedroom of her home in Riverdale, NY.

Interview of Valerie

The judge had previously requested a court examiner interview Valerie. The court examiner, Mark Goldstein, had appeared at Valerie’s home on November 21. A home care nurse advised him that Valerie’s son had told her that the court examiner could not get into the home. The court examiner called the police to try to get entrance into the home to meet with Valerie. Valerie refused to meet with him.

Valerie’s Affidavit

Valerie had executed an affidavit several days later indicating she did not want to have a guardian appointed for her. The affidavit also stated she was satisfied with regard to her son’s management of her finances and she had been humiliated by the police coming to her house concerning the interview by the court examiner.

Judge Aarons stated in her opinion, “a person reading the affidavit would incorrectly receive the impression that the person making these recitations had a thorough comprehension of the facts and legal issues presented. This is far from the case.”

The Hearing

The hearing in Valerie’s bedroom was attended by 11 persons. Some were forced to sit on Valerie’s bed because there was not enough chairs. During the course of the hearing, the evidence indicated Valerie did not know who her daughter’s attorney was. She also did not have an understanding of the nature of the proceeding. She had no recollection of signing the affidavit, even though it had been executed only two days earlier. Valerie stated her son had hired the attorney to represent her.

Judge Aarons wrote in her decision, “while it may not be unusual for an attorney to be contacted or selected by a relative, it is unusual when the relative is the person charged with exerting undue influence, and with using his agency powers improperly for his own gain.”

Judge Aarons disqualified the attorney who had been retained on behalf of the son for his mother and the attorney for the woman’s daughter who had sought the appointment of a guardian. An independent guardian was appointed by the court.guardianship attorney in New York

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Seniors Beware of Scams

January 22, 2014 By

With the passage of every single day, the number of financial scams targeting seniors is on a gradual rise. It will not be a wrong claim to make that the same is often referred to as the “crime of the 21st century”. Financial elder abuse can be looked upon as an abuse when a fraudulent makes an attempt to make improper use of money of an elderly person. It seems to be a matter of encouragement that a majority of all states has come up with laws that aim at providing senior members with protection.

Fake Prescription Drugs

One of the common types of scams that have been prevalent since the early 2000 is issues pertaining to counterfeit prescription drugs. It has been found that seniors have a tendency so as to be able to make an attempt to find better prices on the specialized medications that are available. The danger that seniors are faced with is that the payment they make does not play any role in improving the health condition of elderly persons. Rather, the unsafe substances purchased can cause greater harm and adversely affect the health of concerned elderly individuals.

Selling Bogus Items

One of the other types of frauds that are committed against seniors is selling bogus items. In similar types of fraud, an elderly person is talked in a sweet manner so as to buy a product. The new product that they are convinced to purchase is a brand new television in a new sealed pack. However, the same turns out to be a well-padded rock. It is important for seniors to stay away from buying similar types of fraudulent items. There are also several instances where seniors are forced to purchase property under undue influence/external pressure. You are most likely to find several instances where seniors have been duped to part along with their properties.

Claiming False Prizes

A financial fraud that is committed against all concerned seniors is offering them with false prizes. In this type of scams, seniors are duped in such a manner such that they are made to believe that can become rich overnight. A survey has brought to light the fact that, by means of committing similar types of frauds, the scam making market is able to earn an amount of approximately one billion every single year. Since our society is bombarded with fashion crazy persons, fraudsters tend to earn a good amount of cash by means of duping them into purchasing fraudulent anti-aging products. They are made to believe that using these products at the age of 60 can make them feel in their early 40’s.

Telemarketing can indeed be looked upon as one of the common types of frauds that are made against elderly persons. It has been found that the older section of our society is easily susceptible to similar types of frauds that are committed. Since there are no documented proofs, similar types of scams can indeed prove to be difficult to trace, as well. The number of financial frauds and scams against seniors is expected to increase if proper steps are not taken.

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