By Deborah Kaplan, Supreme Court Justice, New York County and Chair, NYS Judicial Committee on Elder Justice; and Joan Levenson, Esq., Principal Law Clerk to Deborah Kaplan and Counsel, NYS Judicial Committee on Elder Justice
The focus of this article is the financial exploitation of older, impaired adults in the context of purported marriages. Three representative cases where individuals exerted undue influence over a vulnerable adult will be discussed.
In Campbell v Thomas, 73 AD3d 103, [2d Dept 2010], Howard Thomas, 72-years-old, had terminal prostate cancer and severe dementia. In February 2001, while Howard’s daughter was away, Nidia, Howard’s 58-year-old caregiver, arranged for her and Howard to get married and then transferred Howard’s assets into her name. Howard died six months later, and his children commenced an action against Nidia for a judgment declaring Nidia’s marriage to Howard to be null and void. The trial court granted judgment declaring that Nidia “shall have no legal rights and can claim no legal interest as a spouse of Howard N. Thomas.” The Second Department affirmed, stating that Nidia procured the marriage through overreaching and undue influence and therefore “forfeited any rights that would flow from the marital relationship. . . ,” including the statutory right of a surviving spouse.
In Matter of Doar, 39 Misc3d 1242(A) [Supreme Court, Kings County 2013], the petitioner, Adult Protective Services, sought a guardian for the 83-year-old alleged incapacitated person, LS. The petition was prompted by reports of financial exploitation of LS by Vanessa, his 46-year-old wife. Vanessa began working for LS as he grew increasingly cognitively impaired. She isolated him and feigned a romantic interest in him. They were married, and Vanessa depleted LS’s entire estate valued at $350,000 – $400,000. The court appointed a guardian and directed the guardian to investigate LS’s financial affairs and, if appropriate, bring an application for a turnover proceeding and/or to void the marriage.
More recently, in the Matter of John M, 79 Misc3d 1230(a) [Supreme Court, New York County 2023], the petitioner-daughter of John sought to annul the marriage between John and Helen, John’s home health aide, claiming that her father lacked the capacity to enter the marriage. Helen began a “romantic” relationship with John. She isolated him from his family, and unbeknownst to anyone, they married on June 22, 2022, and then funds from John’s accounts disappeared.
The court voided the marriage ab initio, finding that Helen unduly influenced John into consenting to marriage, and it would be unconscionable to permit her to benefit from this marriage since she was aware of John’s cognitive impairment.
You might think these kinds of cases would be rare. They are not. It’s alarming how often older, compromised adults, particularly those who are wealthy, are taken advantage of in this way.
As the court stated in Matter of Doar,
“Often seniors afflicted with dementia, in the twilight phase between capacity and incapacity, are exploited in plain sight with devastating consequences to the victims. The predators are seldom held accountable.”
It is critical that judges, lawyers, and the public gain a better understanding and awareness of the prevalence of financial exploitation and how undue influence is practiced upon older adults whose mental acuity may be in decline.