As the problem of elder abuse has become increasingly prevalent in recent years, so too has the need to protect elders who suffer abuse, whether physical, mental, or financial, at the hands of the individuals to whom they have entrusted their care and affairs (see Campbell v Thomas, 73 AD3d 103, 104 [2d Dept 2010]). Recent case law demonstrates that elderly individuals can fall prey to their much younger caregivers who secretly marry the elderly in the hopes of benefiting from their estates (see id.; Matter of Berk, 71 AD3d 883, 883-86 [2d Dept 2010]; Matter of Kaminester, 26 Misc3d 227, 235-37 [Sur Ct, New York County 2009]). For family members who are aware of such abuse, one solution may be to commence an Article 81 guardianship proceeding and to seek to have the marriage revoked by a guardianship court (see Mental Hygiene Law 81.29).
Under Mental Hygiene Law 81.29, an Article 81 guardianship court “may modify, amend, or revoke . . . any contract [including one involving a marriage] made while the person was incapacitated” (see Mental Hygiene Law 81.29). In this regard, the Appellate Division, Second Department, has held that a marriage may be revoked when the evidence shows that one of the parties to the marriage “was ‘incapable of understanding the nature, effect, and consequences of the marriage’” at the time that it occurred (Matter of Joseph S., 25 AD3d 804, 806 [2d Dept 2006]). The factors that the guardianship court considers in determining whether to revoke a marriage include, among other things, the differences in the purported spouses’ ages; whether the spouses cohabited; whether there was a change in residency; whether the spouses wore wedding rings; and whether there is any evidence of financial exploitation of the incapacitated spouse (see Matter of I.I.R., 21 Misc.3d 1136[A], at *2 [Sup Ct, Nassau County 2008]).
Matter of Carmen R. is instructive (see 15 Misc3d 1116[A], at *1-6 [Sup Ct, Westchester County 2007]). There, the petitioner, the alleged incapacitated person’s daughter and duly appointed Temporary Personal Needs Guardian, made an application for the annulment of her eighty-nine year-old mother’s marriage to her fifty-seven year-old chauffeur (see id.).
At an evidentiary hearing, Westchester County Supreme Court Justice Peter J. Rosato heard testimony from, among others, the alleged incapacitated person’s physician, which established that she suffered from severe dementia, among other ailments, and could not understand any marriage ceremony; from the alleged incapacitated person, which demonstrated that she knew her alleged spouse, but could not remember his last name or any marriage to him; and from the alleged incapacitated person’s daughter, which suggested that the alleged spouse concealed the “marriage” from her, evidenced the fact that the alleged spouse was her mother’s chauffer, not her friend, and flatly contradicted the alleged spouse’s claim that he had lived with the incapacitated person for more than a decade (see id.). Justice Rosato also heard testimony from the alleged spouse which demonstrated that the first time he publicly disclosed the marriage was on an immigration application to have his daughter admitted to the United States from Ecuador; that he had been collecting thousands of dollars in rent from the tenants of property owned by the alleged incapacitated person; and that he had previously been arrested for violating a temporary restraining order that prohibited him from having contact with the alleged incapacitated person (see id.).
Based upon the testimony and other evidence before the court, Justice Rosato granted the petitioner’s application for an annulment of the marriage between her mother and the chauffer (see id.). In doing so, Justice Rosato explained that “[i]t [was] abundantly clear, on the evidence adduced upon the hearing held herein, that the [alleged incapacitated person] did not possess the requisite mental capacity to marry” (id.). Justice Rosato also found that the marriage was a product of fraud arising from the purported spouse’s desire to gain entry into this country for his daughter who was living in Ecuador until after the marriage (see id.). Accordingly, Justice Rosato granted the petitioner’s application to annul the marriage (see id.).
Of course, an annulment in the context of an Article 81 proceeding is only feasible where the relatives of an allegedly incapacitated person are aware of the marriage prior to the person’s death. Where the marriage is concealed until after the person dies, however, other remedies may exist outside the context of Article 81 (see Jaclene D’Agostino, “Appellate Division Cites Equitable Factors In Denying Entitlement To Elective Share”)
A recent decision from New York County in which Surrogate Glen denied an Article 17-A guardianship petition, Matter of Chaim, A.K., 8/26/2009 NYLJ 41 (col 1) (Sur Ct, New York County), has clarified the proper use of the proceeding.
The Court began its analysis by distinguishing the characteristics of guardianship proceedings brought pursuant to Article 17-A of the Surrogate's Court Procedure Act, and those brought under Article 81 of the Mental Hygiene Law. Specifically, the Court held that the Article 17-A proceeding is not necessarily appropriate in all circumstances where an individual has been diagnosed as developmentally disabled or mentally retarded.
Chaim presented facts typical of Article 17-A cases. Parents were petitioning for guardianship of their son who had reached majority and had been diagnosed by two physicians as developmentally disabled. He was unable to make medical decisions for himself. Indeed, both diagnosing physicians submitted affidavits supporting his parents’ application. However, the additional information before the Court, including psychiatric reports demonstrating psychological and emotional problems, led the Surrogate to question whether an Article 17-A guardianship was appropriate.
In her decision, Surrogate Glen explained the many factors that distinguish Article 17-A proceedings from those commenced under Article 81. She noted the following:
Article 17-A was originally intended as a vehicle for parents of mentally retarded children to continue to exercise control after the child reached an age of majority, while Article 81 is directed at adults who have lost or diminished capacity;
Article 81 grants no more power to the guardian than is necessary, while Article 17-A does not allow for the court to grant the guardian a particular degree of control over the ward;
No hearing is required under Article 17-A, while a hearing is necessary under Article 81, providing the opportunity for cross-examination and independent counsel for the AIP;
Article 17-A allows for the discretionary appointment of a guardian ad litem, while Article 81 mandates the appointment of an independent court evaluator;
Article 17-A is silent as to burden of proof, whereas Article 81 requires clear and convincing evidence;
Article 17-A is largely driven by forms, often providing the court with conclusory statements about the ward’s condition but resulting in ease for applicants who frequently petition pro se, while Article 81 is more complex and thus more likely to require the services of an attorney; and
Article 17-A guardians are not required to report to the court with any updates after the appointment, whereas Article 81 guardians must file detailed reports ninety days later and subsequently on an annual basis (id.).
Considering Chaim’s particular situation in light of the “all or nothing” nature of an Article 17-A guardianship, Surrogate Glen denied the Petition and suggested that Article 81 may be more appropriate. Her rationale was that the evidence demonstrated that Chaim’s difficulties were attributable more to mental illness than mental retardation, and thus were likely treatable. As a result, the Court opined that it would be unnecessary and inappropriate to give a guardian complete power over Chaim’s affairs pursuant to Article 17-A. Instead, the Court held that “changes in his circumstances . . . may require altered powers in the guardian or perhaps even, someday, no guardian at all” (id.).
This decision has the potential to significantly change the landscape of guardianship proceedings in Surrogate's Courts. It is presently unknown whether Chaim will be the subject of an appeal, but we will keep you informed of any developments.