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Tuesday, June 11, 2024
ON ELDER ABUSE AND GUARDIANSHIPS
Monday, January 31, 2022
COURT INTERVENES ON ELDER ABUSE
Matter of Application of Nunziata, Date filed: 2021-12-15, Court: Supreme Court, Nassau, Judge: Justice Gary Knobel, Case Number: 850023-I-2021:
“Dementia robs its victims of their reason and judgment bit by bit” (Matter of Doar (L.S.), 39 Misc.3d 1242(A), 2013 NY Slip Op 50988(U), [Sup Ct Kings County, Barros, J.]). However, the affliction of dementia can lead to the” ‘often well-hidden problem’ [of] elder abuse, the [emotional, physical and] financial exploitation of elderly individuals who have become mentally incapacitated (Bailly, Supp Practice Commentaries McKinney’s Cons Laws of NY, Book 34A, Mental Hygiene Law §81.14, 2010 Pocket Part, at 36), in part because the perpetrator of such conduct is in many cases a member of the victims family” (Campbell v. Thomas, 73 A.D.3d 103, 104-105 [2nd Dept. 2010]).1 This guardianship case highlights the predation and exploitation which can occur when a person in a position of trust is given the opportunity to take advantage of an individual who is suffering from diminished mental capacity and slowly sliding into the abyss of dementia (see, Huggins v. Randolph, 45 Misc. 3d 521, 527 [Civ Ct Kings County 2014]). The 13-day trial of this hard-fought guardianship proceeding, conducted via Microsoft Teams, was commenced by the Commissioner of the Nassau County Department of Social Services pursuant to Article 81 of the Mental Hygiene Law and presented to this Court the unusual issues of (1) whether to set aside the advance directives signed on October 8, 2019, by Nancy K., the alleged incapacitated person (“AIP”), who was first diagnosed with cognitive impairment on February 19, 2016, and dementia on May 1, 2017, (2) whether to void ab initio the November 6, 2020, marriage between Nancy K. and the cross-petitioner, William McEnaney, on the ground that Nancy K. lacked the capacity to enter into the marriage contract, and (3) whether the clear and convincing, or the preponderous of the evidence, burden of proof standard should be applied by this Court in determining both issues.
It is important to note in this context that on June 20, 2014, three years before there was any subjective or objective evidence that Nancy K. was afflicted with dementia, and six years before she entered into a marriage contract, she executed a will (and there was no evidence at trial of another will) which left only $25,000.00 to William McEnaney.
Petitioner County of Nassau, through its Commissioner, believed it had to intervene on behalf of Nancy K. to protect her from harm and to seek the appointment of a guardian or guardians, other than the cross-petitioner husband, on Nancy K.’s, behalf to oversee her personal needs and manage her property interests. The petitioner framed these issues within the context of allegations of elder abuse by the cross-petitioner in the forms of neglect (e.g., frequently bringing Nancy K. to Baldwin Park and allowing her to wander by herself around a park surrounded by sea water), and financial exploitation (in the guise inter alia of a predatory marriage which was entered into to control Nancy K.’s liquid assets of over two million dollars plus real property).
Upon the presentation by the petitioner of the order to show cause commencing this proceeding, and after reviewing the serious allegations in the fifty-plus page petition, this Court suspended the advance directives purportedly executed by Nancy K., and made the following appointments from the Part 36 fiduciary list: a temporary guardian (Lloyd Weinstein, Esq.) pursuant to Mental Hygiene Law §81.23; counsel (Elisa Rosenthal, Esq.) for the alleged incapacitated person pursuant to Mental Hygiene Law §81.10 (c), and a court evaluator (Edward Cunningham, Esq.,) pursuant to Mental Hygiene Law §81.09 (a). This Court also appointed a geriatric care manager (Yvonne Murphy) on behalf of Nancy K., and trial counsel (Brian Heitner, Esq.) to be co-counsel with Ms. Rosenthal on behalf of Nancy K.
The cross-petition, literally filed on the eve of trial, seeks to dismiss the petition and permit the cross-petitioner to be appointed permanent guardian of the personal needs and property management for the AIP. Cross-petitioner alternatively seeks, if the court determines that an independent person, a non-family member on the Part 36 fiduciary list, should be appointed the guardian of the person and property of the AIP, that the temporary guardian, Lloyd Weinstein, Esq., be removed and not be appointed a permanent guardian, and that either the court appoint an independent guardian or appoint cross-petitioner as guardian of the person and property of the AIP, with the power to handle her property management affairs and determine her medical and personal care.
Cross-petitioner husband claimed and attempted to prove at trial a picture of domestic bliss, that nothing untoward ever happened, and that he should be appointed the guardian of his wife.
Nancy K., the alleged incapacitated person, was never physically present in the virtual courtroom during the trial, nor did she testify in this proceeding.
This court has issued two unreported decisions and five reported decisions during this proceeding; on March 31, this Court (Knobel. J.) directed that the trial would encompass four phases: (1) whether Nancy K. should have a guardian appointed for her pursuant to Mental Hygiene Law §81.02, (2) whether the advance directives signed by Nancy K. on October 8, 2019, and the marriage contract entered into by Nancy K. on November 6, 2020, should be set aside on the ground of lack of capacity, (3) whether the advance directives obviate the need for a guardian if the court finds that had capacity at the time they were executed, and (4) whether Nancy K. should have a family member or independent guardian appointed for her if the Court finds that Nancy K. requires a guardian for her personal needs and property management.
However, the cross-petitioner, through his attorney, conceded during trial that Nancy K. is presently incapacitated and in need of a guardian. The petitioner, including the court appointees, also agreed that Nancy K. is presently an incapacitated person and in need of a guardian; the petitioner, counsel for Nancy K. and the court evaluator uniformly conclude that cross-petitioner William McEnaney should not and cannot be Nancy K.’s guardian.
Thus the main issues which remain to be determined by this Court are whether Nancy K. had capacity when the power of attorney and living will were executed, whether Nancy K. had capacity when she and the cross-petitioner were married by the City Manager of Long Beach on November 6, 2020, and whether the cross-petitioner or an independent fiduciary qualified to be a guardian should be the guardian, or a guardian, for the personal needs and property management of Nancy K.
The objective medical evidence adduced at trial demonstrated that Nancy K. began to suffer a cognitive decline and impairment within four months after her mother passed away in November 2015. Nancy K.’s primary care physician, Dr. Zupnick, noted on February 15, 2016, that “according to her friend she has been having memory lapses since her mother died in October.” Four days later Dr. Kristin Waldron, a neurologist assessed Nancy K. as having a mild cognitive impairment, which she upgraded one month later to “cognitive impairment.” Dr. Waldron performed a mini-mental status exam (“MMSE”) on Nancy K. on December 29, 2016, and her score was 27 out of 30; on May 1, Dr. Waldron noted that “dementia caregiver education and support was provided.” Dr. Poonam Dulai, a neurologist, examined Nancy K. on November 9, 2017, and found that she “[could] not do 3 step calculations; speech is slow with delayed responses…clinically suspect primary dementia…” He prescribed Namenda, a medication for people who have memory loss, and assessed her cognitive score to be 21 out of 30. Dr. Zupnick continued to note her memory loss in 2018, and on April 30, 2019, he noted that she suffered from “[d]ementia with behavioral disturbance” and that she had “limited decision making ability.” Finally, on July 3, 2019, Dr. Zupnick assessed Nancy K. as possessing “Alzheimer’s dementia with behavioral disturbances…. Counseling included long conversation about social service suggestion that when her companion leaves the house having someone else stay with her because in the past she has wandered off.”
Her disorder prevented this Court from ascertaining the true nature of the relationship between herself and the cross-petitioner prior to the time of her descent into the abyss of dementia. The oral testimony indicated that Nancy K. was living by herself in 2001, four years after the death of her husband Larry Kosofsky, when she hired the cross-petitioner to perform work on her house, and that sometime between 2002 and 2005 she permitted the cross-petitioner to move into the basement level of the house. Superstorm Sandy allegedly wrecked havoc on the house and the property on October 29, 2012. Years later, however, the photographic evidence taken by the temporary guardian on March 1, 2020, revealed squalor conditions in the basement. The cross-petitioner testified that he asked Nancy K. to marry him two days before Superstorm Sandy whipped through Baldwin Harbor. His proposal was not acted upon by Nancy and the cross-petitioner.
Two years later, on June 20, 2014, Nancy K. executed a will leaving the cross-petitioner, and another friend, a bequest of $25,000.00. The oral testimony adduced at trial revealed that Nancy K. would financially help friends in need,
The documentary evidence revealed that Nancy K.’s financial investments over the years has resulted in her accumulating assets of over $2,000,000.00.
Adult Protective Services’ (“APS”) first investigation of Nancy K. and the cross-petitioner occurred in the fall of 2017 pursuant to a complaint filed by a friend of Nancy K.’s., Sister Dorothy, a nun from the parish where Nancy K. attended church. Sister Dorothy complained that Nancy K. wanted the cross-petitioner removed from her residence, that the cross-petitioner was taking advantage of Nancy and managing her finances, and that Nancy K. had gotten lost when she drove her car to get ice cream from Baldwin and eventually arrived in Northport, a distance, which the Court takes judicial notice of, of approximately 32 miles; her car then became flooded in a flash flood storm. This Court heard extensive oral testimony from Nancy K.’s friends and relatives (who do not reside locally in Nassau County) expressed their extreme concern in 2017 about Nancy K.’s cognitive deficits and her treatment by the cross-petitioner — that he did not permit Nancy K. to operate her motor vehicle after the “lost in the flood” incident, that he isolated her from her friends, that her cell phone did not get replaced, that she stopped attending daily mass and church events, and that he took control of her life and finances. Nevertheless, the investigation by Adult Protective Services was terminated and closed in 2018 without any action taken.
The impetus to commence the proceeding at bar began pursuant to a complaint made on June 18, 2019, by a Baldwin Harbor Parks Department employee, Lisa Seminera, who testified at trial that the cross-petitioner would frequently bring Nancy into the park during the summer of 2018 and the winter of 2019, and leave her by herself for many hours without a companion to watch her while she wandered around the park and he went to work.2 According to Ms. Seminera, the park employees became Nancy K.’s sitter. Consequently, APS began its second investigation into whether Nancy K. was at risk of harm.
Social worker Shirley Rembert testified that after conducting a mini-mental status exam with Nancy K., Nancy did not know the day of the week or the month of the year and received a score of 22/30, in the range of a cognitive deficit. However, both Ms. Rembert and her supervisor, Muriel Jeanty, testified that the result of that MMSE was flawed; Rembert testified that the cross-petitioner was constantly disrupting the test. Rembert further testified that she visited Nancy K. monthly, but that Nancy K. did not participate in the interviews and that the cross-petitioner would inquire about what it would take for APS to close this case. Rembert testified that she informed the cross-petitioner that she needed proof from a medical doctor that Nancy K. did not have a cognitive impairment, which was never supplied. Ms. Jeanty visited Nancy K. on February 20, 2020, to conduct another MMSE; Jeanty testified that any interference or coaching by the cross-petitioner would be considered an incorrect answer. Consequently, Nancy received a score of 7/30, which indicated significant cognitive impairment.
Despite the cross-petitioner’s acute awareness of Nancy K.’s cognitive impairments, or maybe because of them, he arranged with a neighbor, Alex von Kiel, Esq., for Nancy to execute on October 8, 2019, a power of attorney and a health care proxy naming the cross-petitioner as Nancy K.’s agent. Von Kiel testified that he even though he was aware of Nancy K.’s cognitive issues, he proceeded anyway to have her execute the advance directives. Interestingly, the cross-petitioner did not execute advance directives at that time even though he purportedly had serious health scares prior to October 8, 2019. Moreover, although this Court prevented testimonial evidence based upon the attorney-client privilege (see, Matter of Nunziata [Nancy K.), 72 Misc3d 529 [Sup Ct Nassau County]), significantly there was no testimonial evidence adduced at trial by the witnesses to the execution of the power of attorney which clearly demonstrated any independent thought and intention by Nancy K. that she wanted to execute that document, that she was aware of the significance of the power of attorney and that she understood what rights she was relinquishing. The Court notes that it invalidated the health care proxy pursuant to the order of this court dated April 15, 2021 (Knobel, J.).
There was extensive documentary and oral testimony adduced at trial which demonstrated that the cross-petitioner was struggling financially, that he had six judgments filed against him, including federal and state tax judgments, and that he used Nancy K.’s assets to pay for his personal expenses. Other than the cross-petitioner’s testimony regarding the payment of Nancy K.’s expenses and his cross-petitioner’s expenses, there was no documentary evidence or other proof proffered that Nancy K. affirmatively acquiesced to having the cross-petitioner takeover the financial management of her day to day, month to month expenses. Instead, there was documentary proof submitted that Nancy K. would endorse checks with her maiden name, Brehaut. Kevin Richberg, the manager of the Bank of America branch in Baldwin, testified that Nancy K. was not aware of who he was in 2019. The cross-petitioner testified that when the cross-petitioner and Nancy K. went to the branch on March 20, 2020, at the beginning of the COVID-19 pandemic, to access Nancy K.’s safe deposit box, it was purportedly empty. Chuck Shields, Nancy K.’s former accountant and the named executor in her will, testified that the safe deposit box was opened to contain the 2014 will, and that Nancy K. asked for the key back from Shields, who was originally entrusted with the key.
On November 6, 2020, the cross-petitioner arranged for he and Nancy K. to be married in a simple ceremony performed by the Long Beach City Manager, Donna Gayden. None of Nancy K. s friends or relatives were informed about the wedding prior to its occurrence; however, the cross-petitioner’s mother and siblings were in attendance. Ms. Gayden testified that when she inquired why Nancy K. had to be held up by the cross-petitioner, she was falsely informed that Nancy K. was recovering from COVID-19.
The cross-petitioner, through his testimony, the testimony of his family and friends, and the submission into evidence of many pictures of Nancy K. with the cross-petitioner and his friends and family, maintained that he and Nancy K. had a romantic relationship, and that most people assumed they were either happily married or a couple living together. Except that the evidence revealed that the cross-petitioner was a gregarious person who overshadowed Nancy K. for at least the last five years. He contended that he had no idea about the extent of Nancy K.’s assets, that Nancy K. did not want to see her friends and family, and that Nancy K. was aware of his management of her daily finances.
The temporary guardian and the geriatric care manager witnessed the extent of Nancy K.’s dementia when they observed upon their first visit to Nancy K.’s residence on March 2, 2021, that Nancy K. was oblivious to their presence and did not interact with them.
The temporary guardian, Lloyd Weinstein, Esq., was appointed by this Court in the order to show cause dated February 19, 2021 (Knobel, J.). The temporary guardian submitted a detailed initial report after his first meeting with Nancy K. in her home in Baldwin Harbor on March 2, 2021, three months after the cross-petitioner married her. He observed that Nancy K. had no interest in his presence in the home, did not respond to questions, and did not communicate with him. He also observed that the cross-petitioner was pushed away when he attempted to kiss Nancy K., and that Nancy K. and the cross-petitioner slept separately on different floors of the house.
Attached as Exhibits B, C and D to the amended report of the temporary guardian are photographs depicting the condition of the interior of the home. The temporary guardian described the condition of the home as “filthy, strangled with antiquated papers in precarious stacks, bank, utility and other statements, invoices and other documents in stacks all over the house. There are open construction projects, clothes and cleaners and debris everywhere.”
The temporary guardian further provided summaries of interviews with several individuals in Nancy K.’s life, including an interview with cross-petitioner, William McEnaney. The temporary guardian stated that the cross-petitioner was extremely defensive of his behavior and wanted to know if he could “work this out.”
The temporary guardian also interviewed Donna Gayden, the Long Beach City Manager who performed the wedding ceremony. Significantly, Gayden remembered asking Nancy K. if she “was ok,” which was only the second time in Gayden’s career that Gayden felt that she had to ask that question since the cross-petitioner spent most of the ceremony holding up Nancy K. Gayden was informed that Nancy K. was recovering from COVID-19, which was a falsehood. When Gayden was asked if anything stood out from the ceremony that she could remember, Gayden stated that the cross-petitioner offered Gayden cash, which she allegedly declined.
The geriatric care manager, Yvonne Murphy, was appointed by the Court on March 17, 2021 (Knobel, J.). The geriatric care manager was directed by order dated March 23, 2021 (Knobel, J.) to visit protentional facilities and ascertain whether they are safe places of abode for Nancy K., which she did, along with the temporary guardian. The geriatric care manager and the temporary guardian have worked together to address emergency situations which have arisen since their appointments; they have submitted numerous emails and informal letters updating all parties of Nancy K.’s health and welfare.
Edward Cunningham, Esq. was appointed to be the court evaluator, in the order to show cause dated February 19, 2021 (Knobel, J), to investigate the claims made in the petition and report to the Court. Cunningham conducted several interviews; Cunningham attempted to speak to Nancy K., but she would not speak to him. According to the court evaluator, Nancy K. did not seem to have any idea what the court evaluator was asking, and that she did not have any coherent responses to anything Cunningham said. When the court evaluator visited on March 2, 2021, he noted that the “house was a mess with clothing laying on chairs and tables all over the place. The beds were unmade and the bathrooms not clean.” He was accompanied by the temporary guardian and Nancy K.’s counsel. The court evaluator spoke with the cross-petitioner privately, noting that the cross-petitioner was very nervous and talkative. The cross-petitioner explained to Cunningham how he and Nancy K. met about twenty years ago, and started a business doing home repairs together. He said Nancy K. “hasn’t been right” since her mother died in 2015. He further told the court evaluator that Nancy K began to walk by herself in the park nearby, that she made friends with some of the people who worked there, and that he would drop her off and pick her up from the park, which was surrounded by waterways. The cross-petitioner denied that he was informed that Nancy was in danger in the park. The cross-petitioner stated to the court evaluator that his finances and Nancy K.’s finances were separate, and that he knew nothing about her finances.
The court evaluator reported that everyone he spoke to during his investigation did not believe that Nancy K. had the capacity to consent to the marriage. The court evaluator spoke with Robert and Virginia Brehaut who are the brother and sister-in-law of Nancy K., who told the court evaluator that the cross-petitioner was controlling access to Nancy K., who they have not seen in five years. The Brehauts were surprised that Nancy had been married, they knew nothing about the wedding before it took place and were not invited to the wedding.
Elizabeth Tarrant, sister of Nancy K., was also interviewed by the court evaluator, and she said she noticed Nancy’s decline in 2016. She stated that she tries to call Nancy K. but her phone calls go unanswered, and when Nancy K. did pick up the telephone, the cross-petitioner would be in the background telling Nancy what to say. Elizabeth told the court evaluator that she did not believe the marriage was legitimate.
Jean Petiote Muriel and Shirley Rembert, the investigative case workers for Adult Protective Services, were interviewed by the court evaluator; they also testified extensively at trial and were very credible.
The court evaluator’s recommendations to the Court were that Nancy K. is incapacitated as defined by Mental Hygiene Law §81.02 and that an independent guardian be appointed from the Part 36 fiduciary list for Nancy K.’s personal needs and property management.
The cross-petitioner did not proffer any medical testimony or evidence to refute the medical evidence submitted at trial. Counsel for Nancy K. produced an expert witness, Dr. James Lynch, a psychiatrist, who testified that, based upon his review of Nancy K.’s medical records, Nancy K. did not have the capacity to enter into any contracts, including marriage, by the end of 2017.
“Our law considers marriage in no other light than as a civil contract” (di Lorenzo v. di Lorenzo, 174 NY 467). Domestic Relations Law §10 states that “[m]arriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.” Thus “[a] marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto…is incapable of consenting to a marriage for want of understanding” (Domestic Relations Law §7 [2]).
Revocation of contractual transactions is an available remedy under Mental Hygiene Law §81.29(d), which authorizes the court (in relevant part) to “modify, amend, or revoke…any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated…” Marriage constitutes a contract within the meaning of Mental Hygiene Law §81.29 (d) (see, Matter of Dot E.W., 172 Misc 2d 684, 693-694 [1997, Prudenti, J.]; see, Matter of Kaminester v. Foldes, 51 A.D.3d 528, 529). However, Mental Hygiene Law §81.29 (d) does not state which burden of proof — clear and convincing evidence, the highest evidentiary standard in a civil matter, or preponderance of the evidence — should be applied by the court in modifying, amending or revoking any contract or conveyance. Moreover, the Appellate Division, Second Department, in appellate and trial decisions, has made affirmative, yet contrary, declarations regarding the standard of proof to void the marriage contract and any other transaction. In 2015, in Matter of Berk, 133 A.D.3d 850, 851 [2nd Dept. 2015]). The Appellate Division, in evaluating the Surrogate Court’s probate proceeding determination of the issue of whether the petitioner knew that the decedent was mentally incapacitated and incapable of consenting to the marriage, specifically disagreed with the Surrogate Court’s application of the clear and convincing burden of proof, and instead held that the burden of proof was upon the decedent’s representatives to establish by a preponderance of the evidence that the decedent was mentally incapacitated and incapable of consenting to the marriage (Matter of Berk, 133 A.D.3d 850, 851-852 [2nd Dept. 2015]). By contrast, in Matter of Nurse, 160 AD3d 745 [2nd Dept. 2018] the Appellate Division affirmed, without specifically addressing in its decision, the trial court’s determination in an Article 81 proceeding that the “petitioners had proven by clear and convincing evidence that the [incapacitated person] was incompetent at the time the deed was executed…” (Matter of Nurse, 160 AD3d 745 [2nd Dept. 2018]). Similarly, in both Kaminester v. Foldes, 51 AD3d 528, 529 [1st Dept. 2008] and In re Rose S., 293 AD2d 619, 620 [2nd Dept. 2002], the movants presented medical evidence that the alleged incapacitated person did not have the requisite mental capacity to marry or execute the document in question, yet the First and Second Departments did not take the opportunity to clarify the standard of proof. These cases refer to the clear and convincing standard without adopting it or declaring that it is the movant’s burden of proof standard. Although the Rose court did not address the movant’s standard of proof (“[i]n light of the presumption of competency, the burden of proving mental incompetence is upon the party asserting it [citations omitted]“), both Rose and Kaminester held that “where there is medical evidence of mental illness or a mental defect, the burden shifts to the opposing party to prove by clear and convincing evidence that the person executing the document in question possessed the requisite mental capacity” (In re Rose S., 293 AD2d 619, 620 [2nd Dept. 2002]; Kaminester v. Foldes, 51 AD3d 528, 529 [1st Dept. 2008]).
“As a general rule, a party’s competence is presumed, and in order to set aside a transfer of property on the ground of lack of capacity, it must be established that the party did not understand the nature of the transaction at the time of the conveyance as a result of his or her mental disability” (Matter of Nurse, 160 A.D.3d 745, 747 [2nd dept. 2018] quoting Buckley v. Ritchie Knop, Inc., 40 AD3d 794, 795, 2nd Dept. 2007]). Persons suffering from diseases such as dementia or Alzeimer’s are not presumed incompetent (see, Henik v. Darconte, 189 AD3d 797, 798 [2nd Dept. 2020]). “Instead, it must be demonstrated that the individual was incompetent at the specific time of the challenged transaction, i.e., that he or she was” ‘so affected as to render him [or her] wholly and absolutely incompetent to comprehend and understand the nature of the transaction’” (Feiden v. Feiden, 151 AD2d at 890, quoting Aldrich v. Bailey, 132 NY 85, 89, 30 NE 264 [1892]; see Matter of Nealon, 57 AD3d at 1327; Buckley v. Ritchie Knop, Inc., 40 AD3d at 795; Crawn v. Sayah, 31 AD3d at 369)”
(Matter of Nurse, 160 A.D.3d 745, 747 [2nd Dept. 2018]).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court finds that the totality of the documentary and testimonial evidence adduced at trial established that the petitioner and Nancy K.’s attorneys on behalf of Nancy K. proved by clear and convincing evidence (subsuming the lower preponderance of evidence standard) that Nancy K. lacked the mental capacity to execute advance directives on October 8, 2019, and enter into a marriage one year later with the cross-petitioner on November 6, 2020. Consequently, under either standard of proof, the marriage contract and the advance directives must be set aside (see, Mental Hygiene Law §81.29 (d)).
This Court further finds that the cross-petitioner’s testimony and the testimony of his brother Michael McEnaney were not credible, as well as the witnesses who testified about the execution of the advance directives. The credible testimonial evidence at trial revealed that idea to prepare and execute a power of attorney and a health care proxy in October 2019 did not originate with Nancy K., nor did she make any effort to effectuate these documents; she was incapable of doing so. Instead the cross-petitioner manipulated a scenario where it appeared that the execution of those estate planning directives, giving him unlimited power to act as Nancy K.’s attorney and health care agent, without revealing to the attorney drafting those documents, inter alia, that Nancy K. had been diagnosed with cognitive impairments which degenerated further over a three year period, that she had been diagnosed with dementia and possibly Alzheimer’s disease, that Nancy K. had great difficulty answering questions to a mini-mental status exam, if she could answer any at all, that the cross-petitioner was managing all of Nancy K.’s financial obligations, and that she was no longer capable of operating a motor vehicle because of her diminished cognitive capacity. In addition, there was insufficient credible evidence that Nancy K. made any affirmative statements, outside the scope of any attorney-client privileged communications (see, Matter of Nunziata (Nancy K.), 72 Misc3d 529 [Sup Ct Nassau County 2021]) that she was lucid, alert, and aware of the significance of the advance directives she was about to sign and did sign. Furthermore, the cross-petitioner failed to present evidence to refute the conclusions of the petitioner’s and Nancy K.’s medical expert that Nancy K. was not competent to enter into any contracts by the end of 2017, two years before the advance directives were signed by Nancy K. (see, Kaminester v. Foldes, 51 AD3d 528, 529 [1st Dept. 2008]).
Accordingly, this Court finds that the petitioner and counsel on behalf of Nancy K. established by clear and convincing evidence that Nancy K. was so affected by dementia on October 8, 2019, that she “wholly and absolutely incompetent to comprehend and understand the nature” and significance of the advance directives, and consequently the power of attorney and health care proxy signed by Nancy K. on October 8, 2019, are deemed and declared to be null and void on the ground of incompetence (Matter of Nurse, 160 A.D.3d 745, 747 [2nd Dept. 2018]; In re Rose S., 293 AD2d 619, 620 [2nd Dept. 2002]).
Turning to the issue of whether the “marriage” entered into between Nancy K. and cross-petitioner William McEnaney on November 6, 2020, should be declared to be void ab initio, the overwhelming circumstantial evidence adduced at trial, such as Nancy K.’s will dated June 14, 2014, and the fact that it took 20 years for them to get married, leads to the only logical inferences and conclusions which can be drawn; that Nancy K. never wanted to marry the cross-petitioner, that she never made a commitment to him to be married, and that the marriage was wrongfully procured. Nancy K. was diagnosed in 2016 with an irreversible, degenerative, cognitive disease. Her inability to make normal, logical decisions about her personal, social and financial affairs created an opportunity for the cross-petitioner to isolate Nancy K. from her long-time close friends and her siblings, and to completely manage her operational finances on a daily, weekly and monthly basis. Moreover, the cross-petitioner could not plausibly deny awareness of Nancy K.’s lack of capacity to consent to the marriage based upon his first-hand knowledge of inter alia Nancy K.’s behavior and progressive cognitive decline, the treating physicians’ exams, test and reports of her cognitive impairment between 2015 and November 6, 2020, and his action of prohibiting Nancy K. from operating a motor vehicle after she got lost in 2017.
Consequently, it strains credulity to believe that Nancy K., who was incapable of being interviewed by the temporary guardian on March 2, 2021, was mentally competent to marry the cross-petitioner four months earlier on November 6, 2020. Plaintiff’s expert psychiatrist testified that based upon his review of Nancy K.’s medical records that she was not capable of understanding the nature, consequences, and effect of marriage. However, the cross-petitioner failed to meet his required precedential burden of proof to present evidence which was sufficient to refute the conclusions of the petitioner’s and counsel for Nancy K.’s medical expert (see, Matter of Kaminester v. Foldes, 51 AD3d 528, 529 [1st Dept. 2008]; In re Rose S., 293 AD2d 619, 620 [2nd Dept. 2002]).
Accordingly, this Court finds that the petitioner and counsel for Nancy K. have sufficiently demonstrated by clear and convincing evidence that the marriage which occurred on November 6, 2020, between Nancy K. and cross-petitioner William McEnaney, is deemed void ab initio, null and void, on the ground that Nancy K. was “incapable of consenting to a marriage for want of understanding” (Domestic Relations Law §7 [2]) since she was not able, at the time of the marriage, to comprehend the nature, effect and consequences of the decision to marry (see, Mental Hygiene Law §81.29 (d); Matter of Dandridge, 120 AD3d 1411 [2nd Dept. 2014]; Matter of Kaminester v. Foldes, 51 AD3d 528, 529 [1st Dept. 2008]; Campbell v. Thomas, 36 AD3d 576, 577 [2nd Dept. 2007]; Matter of Joseph S., 25 AD3d 804, 806 [2nd Dept. 2006]; Levine v. Dumbra, 198 A.D.2d 477, 477-478 [2nd Dept: 1993]; Matter of H.R., 21 Misc.3d 1136(A) [Sup Ct Nassau County, Iannacci, J., 2008]; Matter of Dot E.W., 172 Misc 2d 684, 693 [Sup Ct Suffolk County, Prudenti, J., 1997]).
The cross-petitioner’s egregious conduct also requires this Court, as a matter of equity, to intervene to protect Nancy K., a vulnerable person, and to prevent the unjust enrichment of the cross-petitioner since it was his wrongful conduct which put himself in a position to obtain financial gain by his attempts to have total financial control of Nancy K’s finances through a power of attorney and marriage, which would also provide him with the right of election in contesting Nancy K.’s 2014 will (see Riggs v. Palmer, 115 NY 506 [1889]; Campbell v. Thomas, 73 A.D.3d 103, 116-119 [2nd Dept. 2010]).
This Court’s paramount concern throughout this proceeding has always been to ascertain what is in the best interest of Nancy K., and now the Court must formally consider whether Nancy K. is likely to suffer harm because she is unable to provide for her personal needs and manage her property, and whether she adequately understands and appreciates the nature and consequences of her functional limitations (see, Mental Hygiene Law §81.02 [b][1],[2]).
“In order for a court to exercise its authority to appoint a personal needs guardian or a property management guardian, it must make a two-pronged determination (see Mental Hygiene Law §81.02[a]; Matter of Linda H.A. [Belluci], 174 AD3d 704; Matter of Agam S.B.-L [Janna W.], 169 AD3d 1028, 1030). First, the court must determine that ‘the appointment is necessary to provide for the personal needs of that person, including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person’ (Mental Hygiene Law §81.02[a][1]). Second, the court must determine either ‘that the person agrees to the appointment, or that the person is incapacitated’ (Mental Hygiene Law §81.02[a][2]). With respect to this second element, ‘[t]he determination of incapacity…shall consist of a determination that a person is likely to suffer harm because’ (1) ‘the person is unable to provide for [his or her] personal needs and/or property management’ and (2) ‘the person cannot adequately understand and appreciate the nature and consequences of such inability’ (Mental Hygiene Law §81.02[b]; see Matter of Carole L., 136 AD3d 917, 918-919, 26 N.Y.S.3d 133). In reaching its determination, the court shall give primary consideration to the functional level and functional limitations of the person (see Mental Hygiene Law §81.02[c]). Significantly, any guardian appointed shall be granted ‘only those powers which are necessary to provide for personal needs and/or property management of the person in such a manner as appropriate to the individual and which shall constitute the least restrictive form of intervention’ (Mental Hygiene Law §81.02[a][2])”
(Matter of Aurelia S., 186 A.D.3d 715, 716 [2nd Dept. 2020]; Matter of Carolyn S. (Gaylor), 192 A.D.3d 1114, 1115-1116 [2nd Dept. 2021).
The evidence clearly established that Nancy K. has cognitive limitations as a result of dementia, which impairs her ability to manage her own personal needs and property, and that she cannot fully understand or understand the consequence of such inability. Consequently, she would suffer harm if a guardian is not appointed on her behalf. Viewing the record in its entirety, and this Court having heard and reviewed the testimony and evidence together with the report and testimony of the court evaluator, the temporary guardian and petitioner's witnesses, this Court finds that the petitioner established by clear and convincing evidence that Nancy K. is an incapacitated person as defined under Section 81.02 of the Mental Hygiene Law in that she is not able to provide for his own personal needs and property management. This Court further finds that the evidence adduced at trial require that an independent personal needs guardian and an independent property management guardian from the Part 36 fiduciary list, rather than a family member, must be appointed on behalf of Nancy K. (see, Matter of Linda H.A. (Belluci), 174 A.D.3d 704, 704-706 [2nd Dept. 2019]; see also Matter of Carolyn S. (Gaylor), 192 A.D.3d 1114, 1115-1116 [2nd Dept. 2021]; Matter of Doar (L.S.), 39 Misc. 3d 1242(A) [Sup Ct Kings County, Barros, J., 2013]
This Court has observed that the temporary guardian has discharged his duties satisfactorily during his tenure as guardian under difficult circumstances, and consequently, this Court finds that the most appropriate and suitable individual to serve in the capacity of permanent property management guardian is the temporary guardian, Lloyd J. Weinstein, Esq., Fiduciary No. 105429, The Weinstein Group, PC, 6800 Jericho Turnpike, Suite 112W, Syosset, New York 11791, telephone: (516) 802-5330, email: LJW@THEWEINSTEINGROUP.NET. Mr. Weinstein shall prepare and file a final account from the time of his appointment to the entry of this order and judgment. John Newman, Esq., a court examiner in Nassau County, Fiduciary No. 112251, 1776 E. Jericho Turnpike, Suite 2, Huntington, New York 11743, telephone number 631-486-7802, email jnewesq@gmail.com, is appointed as counsel to assist Mr. Weinstein in preparing the final account.
This Court also finds, in view of the fact that the geriatric care manager has been working well with the temporary guardian to provide Nancy K. with her personal needs and to take care of emergency situations which have arisen since their appointments, that Yvonne Murphy shall continue in her capacity as geriatric care manager.
This Court further finds that the most appropriate individual to serve as personal needs guardian for Nancy K. is Judith Powell, Esq., Fiduciary No. 401983, 29 Jericho Turnpike, Jericho, New York 11753-1053, telephone: (516) 222-1111, email: JLP@ANEWYORKLAWYER.COM.
The foregoing appointments are to take effect immediately and shall be for an indefinite duration upon the filing of a designation. The property guardian is directed to obtain a bond in the sum of two million dollars.
The judgment to be submitted by the petitioner shall provide for the guardians to have all those powers requested in the moving papers, as authorized under Sections 81.21 and 81.22 of the Mental Hygiene Law, and to make all decisions that are in her best interest and welfare, and that are consistent with her functional limitations.
However, with respect to financial matters, the property guardian shall have the following specific powers until the petitioner’s judgment is submitted, reviewed and signed by this Court:
a. enter into contracts subject to Court approval;
b. sell, subject to Court approval, real or personal property owned by Nancy K.;
c. marshal assets;
c. pay the funeral expenses of the incapacitated person;
e. pay bills as may be reasonably necessary to maintain the incapacitated person;
f. retain counsel with prior court permission and approval, and defend or maintain any judicial action or proceeding to a conclusion.
The personal needs guardian shall have the following powers until the judgment by the petitioner is submitted, reviewed and signed by this Court:
a. determine who shall provide medical care, medical evaluations, medical treatment, personal care and assistance to Nancy K.;
b. make decisions regarding Nancy K.’s living and social environment;
c. relocate Nancy K. to a different facility if necessary, subject to court approval.
In addition to the foregoing findings, the judgment to be submitted by the petitioner shall provide for reasonable compensation to the guardians and the geriatric care manager, which shall be fixed in further orders of the court. The proposed judgment shall also provide for compensation to be paid from the guardianship account to any court appointees who have provided professional services since their last submission of a fee award; those appointees shall serve and file an affidavit or affirmation pertaining to the services rendered and performed in this Article 81 proceeding, up to and thru the issuance of the commission to the guardians.
This Court has reviewed and scrutinized all of the fee requests by the court appointees in this proceeding for an award of reasonable compensation to them from the guardianship account. After thorough review this Court has reduced the hourly amount requested by the Court appointees, not because they did not deserve the fee requested, but as an effort to preserve Nancy K.’s assets. The Court awards in this decision, order and judgment reasonable compensation to each court appointee, payable after this order has been uploaded into NYSCEF, for the reasons stated below.
“Long tradition and just about a universal one in American practice is for the fixation of lawyers’ fees to be determined on the following factors: time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer’s experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved” (Matter of Freeman, 34 NY2d 1, 9 [1974]). The Supreme Court has broad discretion in determining, in a guardianship proceeding pursuant to Article 81 of the Mental Hygiene Law, the reasonable amount to award to court appointees; however, it must provide a clear and concise explanation for its award in a written decision, with reference to the above-listed factors (see In re Zofia L., 136 A.D.3d 818, 821 [2nd Dept. 2016]; Matter of Alice D. [Lupoli], 113 AD3d 609 [2nd Dept. 2014]; In re Marion C.W., 83 A.D.3d 1089, 1093 [2nd Dept. 2011]); Matter of Theodore T. [Charles T.], 78 AD3d 955, 957 [2nd Dept. 2010]; Matter of Catherine K., 22 AD3d 850 [2nd Dept. 2005]).
Edward F. Cunningham, Esq., the court evaluator, is awarded the reasonable sum of $19,168.50, inclusive of disbursements, for 58.98 hours of professional services rendered (at $325 per hour) for investigating the claims in the petition, interviewing potential witnesses, reviewing documents (including financial statements), preparing and issuing a thorough report and attending thirteen (13) sessions of the trial and numerous conferences. The time and labor involved was extensive, given the contentiousness between the petitioner and cross-petitioner, and the unusual issues involved in this proceeding. Mr. Cunningham, a former agent for the Federal Bureau of Investigation, was admitted to the practice of law by the Appellate Division, Second Department in March 1978. The Appellate Division, Second Department, has also designated him to be a court examiner in guardianship proceedings in Nassau County.
Mr. Cunningham is authorized to practice before the Veterans Administration and the Court of Appeals for Veterans Claims. He is also admitted to practice law in the State of Florida. He completed the Certified Training Course in Article 81 of the Mental Hygiene Law given by the New York State Bar Association in 2004 and has served as court evaluator, guardian, counsel to the AIP, counsel to the guardian and court examiner. He is a member of the Elder Law Section, Estate and Trust Law Section and Real Property Law Section of both the New York State Bar Association and Nassau County Bar Association. Mr. Cunningham’s report and recommendations assisted the Court in making decisions which prevented harm to Nancy K.
Elisa S. Rosenthal, Esq., appointed counsel to Nancy K., is an outstanding, rising guardianship attorney who is an active participant in several committees and organizations devoted to elder law and the general practice of law, including the Nassau County Bar Association’s Committee on Elder Law, Social Services and Health Advocacy, and the Surrogate’s Court Estates and Trusts Committee. Ms. Rosenthal is the immediate past Chair of the General Practice Section of the New York State Bar Association and currently serves on the House of Delegates. Ms. Rosenthal has served as court evaluator, guardian ad litem and referee in other proceeds. On the eve of the trial, cross-petitioner filed his cross-petition, which immediately shifted this proceeding into a highly litigious and argumentative proceeding. Cross-petitioner’s counsel consisted of a team of attorneys who assisted in all phases of litigation. At that time, this court appointed Brian Heitner, Esq., to assist Ms. Rosenthal as trial counsel with the litigation. Ms. Rosenthal was primarily focused on the investigative aspects, legal research, preparation of legal briefs and ongoing collaboration with co-counsel. She was responsible for opposing and arguing six different motions filed by cross-petitioner, as well as filing a motion on behalf of Nancy K. to declare the health care proxy signed by Nancy K. invalid. Each motion required extensive legal research and preparation. The court notes, that besides the filing of extensive motions, there were also informal letter applications and emails which required full attention and responses from Ms. Rosenthal. Attorneys who have similar experience as Ms. Rosenthal within the guardianship bar charge between $450 to $650 dollars per hour for their services. Under the totality of the circumstances, the Court awards Elisa S. Rosenthal, Esq. $64,400.00, inclusive of disbursements as reasonable compensation (at $350 per hour) for 184 hours of legal services rendered in this proceeding.
Brian H. Heitner, Esq., a partner in the well-known Long Island law firm Seltzer Sussman Heitner LLP, is a distinguished trial and litigation attorney, specializing in guardianship and estate law. He has been appointed by many judges to serve as counsel to alleged incapacitated persons or guardians in numerous guardianship cases. Mr. Heitner has been practicing for more than twenty-eight years and is certified by the Office of Court Administration as a court evaluator, counsel for an alleged incapacitated person and guardian, and has served in each of those capacities in various counties. Mr. Heitner has lectured to members of the legal profession, including attorneys, judges and court personnel, and lay people on estate, guardianship and elder law issues and has been a presenter, panelist, and moderator for Article 81 guardianship training programs which were personally designed, developed, and produced by Mr. Heitner. This case encompassed a total of 13 days of trial and testimony from approximately 20 witnesses. Mr. Heitner’s involvement and representation of Nancy K. in this proceeding to protect her civil rights and interests was of great benefit to her since, if he was not involved in that capacity, great harm could have befallen her. Mr. Heitner’s billing rate for private clients is $495 per hour, which is commensurate with leading attorneys in the guardianship bar, but significantly below the amount charged by talented trial attorneys with the same experience as Mr. Heitner. Consequently, the Court awards Mr. Heitner $53,550.00 ($425 per hour) for 126 hours of legal services and $3,146.21 in disbursements.
Yvonne Murphy, MA, appointed geriatric care manager is awarded the reasonable sum of $35,250.00 ($150 per hour) for 235 hours of services which is comparable to the fees charged by other court-appointed geriatric care managers. She holds a Master’s degree in social work and a second Master’s degree from John J. College in forensic psychology. Ms. Murphy’s area of expertise is eldercare, guardianship, geriatric case management and social work. She has an extensive and diverse knowledge base in geriatric care where she takes seniors from independence to supportive care with a safety net in place. Ms. Murphy is a frequent lecturer on Medicaid and guardianship topics and has a wealth of knowledge on all the above. Her initial and ongoing effort and work in this matter was essential as it was critical to find Nancy K. a safe new environment where her health could be restored and protected, and she could be properly cared for emotionally and physically. Ms. Murphy attended care plan meetings for the purposes of planning a safe environment, attended court as scheduled, processed documents, reviewed social needs as well as interacted with family members. She was involved in assessing Nancy K.’s medical treatment and care and made sure Nancy K. was in the best environment available. Ms. Murphy continues to update the court with Nancy K.’s condition.
Lloyd J. Weinstein, Esq., temporary personal needs and property management guardian, is an attorney who has been appointed as a guardian, court evaluator and counsel to the incapacitated person by multiple Supreme Court Justices in various counties. Mr. Weinstein was tasked with the appointment as guardian in a highly disputed proceeding. Mr. Weinstein faced daily challenges and obstructive behavior from the cross-petitioner while conducting his guardianship duties. Mr. Weinstein continues to update the court about Nancy K.’s health and safety. From the date of his appointment through the submission of his affirmation dated June 14, 2021, Mr. Weinstein expended 244.90 hours of services. Mr. Weinstein explains that when he required the assistance of his legal staff, he billed at a lower rate of $150 per hour. The court thoroughly reviewed the printout from Mr. Weinstein’s billing program and carefully assessed the hours and time allotted. The Court awards Mr. Weinstein $5,568.75 in legal fees ($375 per hour) for 14.85 hours of legal services performed while executing his guardianship obligations and duties and $67,230.00 for services rendered as guardian ($300 per hour) for 224.1 hours. The Court also awards Mr. Weinstein $901.50 ($150.00) for 6.01 hours of services rendered by his staff in connection with this matter and $389.79 in disbursements. In sum, this Court awards Lloyd J. Weinstein, Esq. $73,700.35 for professional services rendered in this proceeding through May 29, 2021.
The amounts awarded above may be paid immediately by the temporary guardian/property guardian from the guardian account.
Accordingly, it is
ORDERED AND ADJUDGED that the petition for an order appointing a guardian for Nancy K. is granted; and it is further
ORDERED AND ADJUDGED that Nancy K. is found to be an incapacitated person; and it is further
ORDERED AND ADJUDGED that the marriage entered into by Nancy K. and William McEnaney on November 6, 2020, is declared null and void and void ab initio on the ground that Nancy K. lacked capacity to enter into the marriage, and it is further
ORDERED AND ADJUDGED that the power of attorney and health care proxy signed by Nancy K. on October 8, 2021, naming the cross-petitioner as agent, are revoked and vacated on the ground that Nancy K. lacked capacity when she signed those documents, and it is further
ORDERED AND ADJUDGED that Lloyd J. Weinstein, Esq. is appointed permanent property guardian for Nancy K., and obtain an initial bond in the sum of two million dollars; and it is further
ORDERED AND ADJUDGED that Judith Powell, Esq., is appointed permanent personal needs guardian for Nancy K., and it is further
ORDERED AND ADJUDGED that Yvonne Murphy is appointed geriatric care manager for Nancy K., and it is further
ORDERED AND ADJUDGED that John Newman, Esq., is appointed as counsel to the property guardian to assist Lloyd Weinstein in preparing the final account for his role as temporary guardian; and it is further
ORDERED AND ADJUDGED that the property guardian, Lloyd J. Weinstein, Esq., shall have all of the powers listed in Mental Hygiene Law 81.21 as well as the authority to (a) enter into contracts subject to court approval; (b) sell, subject to court approval, real or personal property owned by Nancy K.; (c) marshal assets; (d) pay the funeral expenses of the incapacitated person; (e) pay bills as may be reasonably necessary to maintain Nancy K.; (f) retain counsel with prior court permission and approval, and defend or maintain any judicial action or proceeding to a conclusion; and it is further
ORDERED AND ADJUDGED that the personal needs guardian, Judith Powell, Esq., shall have all of the powers listed in Mental Hygiene Law §81.22, as well as the authority to (a) determine who shall provide medical care, medical evaluations, medical treatment, and personal care and assistance to Nancy K.; (b) make decisions regarding Nancy K.’s living and social environment; relocate Nancy K. to a different facility if necessary, subject to court approval; and it is further
ORDERED AND ADJUDGED that Edward F. Cunningham, Esq. is awarded the sum of $19,168.50, for 58.98 hours of professional service rendered as court evaluator from February 23, 2021, to May 28, 2021; and it is further
ORDERED AND ADJUDGED that Elisa S. Rosenthal, Esq., is awarded the sum of $64,400.00 for 184 hours of legal services provided as counsel to Nancy K. from February 23, 2021, to June 24, 2021; and it is further
ORDERED AND ADJUDGED that Brian Heitner, Esq. is awarded the sum of $53,550.00 for 126 hours of legal services provided as trial counsel for Nancy K. from March 23, 2021, to June 23, 2021, plus disbursements in the sum of $3,146.21; and it is further
ORDERED AND ADJUDGED that Lloyd J. Weinstein, Esq. is awarded the sum of $73,700.35 for 244.90 hours of professional services rendered as temporary guardian for Nancy K. from February 23, 2021, to May 29, 2021, plus $389.79 in disbursements; and it is further
ORDERED AND ADJUDGED that Yvonne Murphy is awarded the sum of $35,250.00 for 235 hours of professional services as geriatric care manager for Nancy K. from March 17, 2021, to June 3, 2021; and it is further
ORDERED AND ADJUDGED that the cross-petition is denied and the cross-petition is dismissed as having no merit; and it is further
ORDERED AND ADJUDGED that the cross-petitioner is directed to permanently vacate the home of Nancy K. on or before January 31, 2022; and it is further
ORDERED AND ADJUDGED that that the cross-petitioner is hereby restrained pursuant to Mental Hygiene Law §81.23 (b) from removing, destroying, moving, selling or disposing of Nancy K.’s personal property, including any motor vehicle she may have title to; and it is further
ORDERED AND ADJUDGED that pursuant to Mental Hygiene Law §81.23 (b) the cross-petitioner is enjoined (a) from removing, interfering, damaging, destroying, and relocating any items in Nancy K.’s home which are owned by her, whether such items are affixed to the residence or are removable, (b) from damaging any existing system in Nancy K.’s home, including the plumbing, heating, electrical and mechanical systems, including all appliances, and (c) from damaging the landscape and structure of Nancy K.’s home, including but not limited to the floors, walls, ceiling and roof of Nancy K.’s home; and it is further
ORDERED AND ADJUDGED that the cross-petitioner shall be responsible for the legal fees he incurred, but in view of the financial disparity of the parties, he shall not be responsible for the fees and expenses of this proceeding awarded to the court appointees, which shall instead be paid from the guardianship account; and it is further
ORDERED that Petitioner shall serve via NYSCEF and by mail a copy of this order with notice of entry on all counsel.
The foregoing constitutes the decision, order and judgment of this Court.
Submit judgment delineating inter alia the powers to be granted to the guardians and the fees to be awarded to the temporary guardian and the geriatric care manager for the services they have provided to date which have not been awarded by this Court.
Dated: December 15, 2021
Footnotes
1. "The "[a]buse of elders takes many different forms' (see Lawrence Robinson, Joanna Saisan & Jeanne Segal, Elder Abuse & Neglect: Warning Signs, Risk Factors, Prevention, and Reporting Abuse, http://www.helpguide.org/mental/elder_abuse_physical_emotional_sexual_neglect.htm (last updated Feb. 2014)). It can be physical (using force to injure or impair an elder); financial (forcing an elder to sign a power of attorney); neglectful (neglecting the needs and wishes of an elder); and emotional (causing an elder to feel ashamed or belittled) Additionally, it is widely held that "[e]lder abuse tends to take place where the senior lives…" (see New York State Office of Children and Family Services, Adult Protective Services, Definitions of Adult Abuse, http://www.ocfs.state.ny.us/main/psa/adultabuse.asp." (Huggins v. Randolph, 45 Misc. 3d 521, 527-528, 991 N.Y.S.2d 735, 740-741, 2014 NY Slip Op 24184, 4 [Civ Ct Kings County 2014]).
2. "Cast me not aside when I grow old; as my strength fails, do not forsake me." Psalm 71, Verse 9
Thursday, December 9, 2021
IDENTITY THEFT IS NOW ELDER ABUSE
Earlier this week, Governor Kathy Hochul signed legislation (S.1560/A.1994)
into law to protect seniors from fraudulent use of personal information
by authorizing support services on identity theft through non-profit agencies and
law enforcement. The legislation allows the Office of the Aging and law enforcement
to recognize identity theft as one of the many forms of elder abuse and take
appropriate action to help seniors.
SUMMARY OF PROVISIONS: The bill adds a definition of "elder abuse and exploitation" to subdivi- sion 1 of section 209 of the elder law and incorporates identity theft in the list of eligible support services through the naturally occurring
retirement communities (NORCS) programs.
The bill amends section 214-c of the executive law to provide that iden- tity theft shall be one of the many forms of elder abuse that the Office of the Aging and the state police address in their educational materials for police officers' use when encountering such abuse. The bill amends subdivision e of section 21-201of the administrative code of the city of New York to add identity theft to the definition of elder abuse. JUSTIFICATION: The unlawful use of an individual's personal identification information such as social security number, driver's license information, or bank and credit card account can result in terrible consequences lasting years. In its worst form it can leave the older victim bankrupt and without assets in their retirement. The Federal Trade Commission (FTC) estimates that as many as 9 million American adults have their identi- ties stolen each year. The crime takes many forms and may go undetected for long periods; it often is not discovered until a review of a credit card statement or receipt of notice for charges not made-or worse, until the person is contacted by a debt collector. (Source: Federal Trade Commission, NYS Attorney General's Office). While older adults are not the exclusive targets of identity theft, they can be especially susceptible to victimization as they often need to share their personal information with caregivers, medical providers' offices, government agencies, and over the internet. The impact of iden- tity theft can be devastating for older adult victims who are unable to restore stolen funds through employment. A recent study by the Office of Children and Family Services found that the cost of financial exploita- tion of adults in New York is over $1 billion dollars yet state law does not currently include identity theft in the definition of "elder abuse". With this legislation our aging support services groups and our law enforcement teams will be able to use available resources to help seniors, the fastest growing sector of our population, from identity theft in its many forms.
Tuesday, May 21, 2019
PREDATORY MARRIAGES
Another issue that can arise with a predatory caretaker.
Matter of Hua Wang (Berk), 2018 NY Slip Op 51016(U), Decided on June 27, 2018, Surrogate's Court, Kings County Ingram, J:
"In the above-entitled contested proceeding, Hua Wang a/k/a Judy Wang (hereinafter petitioner) seeks a decree determining that 1) she is entitled under the provisions of EPTL 5-1.1-A to elect to take her elective share of the estate of Irving Berk (hereinafter decedent) and 2) the notice of election served and filed herein with the clerk of the court has been properly served, filed and recorded as provided by law. Harvey Berk and Joel Berk (decedent's sons and hereinafter referred to collectively as the co-executors) opposed petitioner's petition in an answer wherein they alleged, inter alia, that the marriage of petitioner to decedent was the product of undue influence and that decedent lacked the requisite mental capacity to enter into a marriage contract.
In 1997, petitioner was hired as decedent's live-in caretaker. Decedent was about 91 years old at the time. On June 17, 2005, petitioner (who was almost 48 years old) and decedent (who was 99 years old) married in a ceremony at the New York City Clerk's Office.
On June 16, 2006, decedent died. On October 30, 2006, decedent's will was admitted to [*2]probate in this court and letters testamentary were issued to the co-executors. Petitioner received no bequest under decedent's will.
On December 4, 2017, a 37-day trial commenced in this matter with the last witness testifying on February 26, 2018. Summations were held on May 9, 2018. The trial transcript is approximately 5,000 pages. Over 30 witnesses testified in person or by deposition and well over 100 exhibits were received in evidence. This Court must determine the following issues. 1) Did petitioner know that decedent was mentally incapacitated and incapable of consenting to the marriage? 2) If so, did petitioner take unfair advantage of decedent by marrying him for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of the intended beneficiaries? 3) In the alternative, did petitioner, as decedent's caretaker, exercise undue influence upon decedent to induce him to marry her for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of the intended beneficiaries (see Matter of Berk, 133 AD3d 850 [2d Dept 2015])?
A person is presumed to be competent at the time of the performance of the challenged action and the burden of proving incompetence, by a preponderance of the credible evidence, rests with the party asserting incapacity (Thomas v Gray, 121 AD3d 1091 [2d Dept 2014]; Matter of Berk, supra). The standard of capacity for marriage is whether the person was able to understand the nature, effect and consequences of the marriage (Levine v Dumbra, 198 AD2d 477 [2d Dept 1993]). Marriage is a civil contract, to which the consent of the parties capable in law of making a contract is essential (DRL 10).
In this matter, petitioner argues that decedent was fully capable of entering into a marriage at the time of his nuptials with her. She argues that he continued to work up until shortly before his demise and was able to attend to and continue to run his business at the Berk Trade and Business School. She also argued that he was able to attend and participate in family functions. The co-executors argue the opposite. They argue that decedent was the victim of the slow fog of dementia that started to creep into his life and robbed him of the capacity to understand the effects of entering into a marriage with petitioner.
The record is replete with credible evidence that decedent suffered from both physical and mental impairments. Among other things, in 1999, decedent suffered from a stroke and was hospitalized several times between 1999 and the date of his death for a number of physical ailments. Moreover, the record contains ample evidence that decedent suffered from significant hearing loss. In February 2005, decedent was hospitalized for gall bladder surgery at which time it was noted in hospital records that decedent experienced periods of confusion. In February 2005, decedent met with Sayward Mazur, Esq. (hereinafter Mazur), an attorney who was representing him in a landlord/tenant matter. Mazur testified that he had significant concerns regarding decedent's competency and ability to meaningfully participate in the prosecution of the matter for which he was retained. Mazur's concerns about the decedent's competency were so grave that he considered the appointment of a guardian for decedent. Mazur eventually recommended that a guardian ad litem be appointed for decedent in the landlord/tenant matter. On June 16, 2005, decedent was unable to accurately complete the marriage license application and made critical mistakes including, among other things, decedent's address, his place of birth, and his mother's maiden name. In a photograph taken on decedent's wedding day, decedent [*3]appeared unsmiling and looked dazed and/or confused.
While the parties presented vastly contrasting evidence of decedent's physical and mental condition, the above-specified instances are only a few of the examples of the plethora of credible evidence presented that decedent suffered from diminished mental capacity that rendered him incapable of understanding the nature, effect and consequences of the marriage to petitioner or consenting to the marriage.
Moreover, this Court finds it impossible to believe that petitioner did not know of decedent's mental incapacity. Petitioner, in essence, was decedent's primary caretaker from 1997 until his death. During that time, petitioner was present during decedent's doctor's visits and numerous hospitalizations. The record also reflects that during her tenure as decedent's caretaker, petitioner was with decedent during a significant portion of each day where she would interact with him and she had ample opportunity to observe his actions, his daily routine and interactions with others. Also, petitioner had experience in the medical field. Prior to immigrating to the United States in 1996, petitioner, an ophthalmologist, worked in a hospital in China. With petitioner's medical experience and her constant care of decedent, this court's finds that she knew decedent lacked the capacity to consent to marry her.
An alternate ground for forfeiture of the right of election is whether petitioner, as decedent's caretaker, exercised undue influence upon decedent to induce him to marry her for the purpose of obtaining pecuniary benefits that become available by virtue of being that person's spouse, at the expense of the intended beneficiaries (see Matter of Berk, supra). To establish undue influence, the co-executors must prove, by a preponderance of the credible evidence, that (1) the perpetrator had the motive to exercise undue influence; (2) the perpetrator had the opportunity to exercise undue influence, and (3) undue influence was actually exercised (see Matter of Bianca, 195 AD2d 457 [2d Dept 1993]; Matter of Berk, supra). The party alleging the undue influence must show that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which could not be resisted, constrained decedent to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist (see Matter of Capuano, 93 AD3d 666 [2d Dept 2012]).
The testator's physical and mental condition are critical factors in determining whether the pressure exerted amounts to undue influence (Matter of O'Brien, 182 AD2d 1135 [4th Dept 1992]; Children's Aid Society v Loveridge, 70 NY 387 [1877]; Matter of Woodward, 167 NY 28 [1901]; Matter of Callahan, 155 AD2d 454 [2d Dept 1989]; Matter of Gnirrep, 2 AD2d 404 [3d Dept 1956]; Matter of Streb, 247 App Div 556 [4th Dept 1936]). Similarly, the nature of grantor's relationship with the beneficiary is relevant to whether undue influence was exercised (Matter of Burke, 82 AD2d 260 [2d Dept 1981]). Other factors that have been held to indicate the exercise of undue influence are whether the professional who drafted the document involved in the transaction was chosen by decedent (see Matter of Elmore, 42 AD2d 240 [3d Dept 1973]); whether the person who allegedly wielded undue influence was in a position of trust (Id.), and whether decedent was isolated from the objects of his natural affection (see Matter of Burke, supra; Matter of Kaufman, 20 AD2d 464 [1st Dept 1964], affd 15 NY2d 825 [1965]).
As previously stated, this Court finds that decedent suffered from diminished capacity at the time of his marriage as evidenced from the record before the court. Further, as decedent's [*4]caretaker, petitioner maintained a confidential relationship with decedent, wherein he was dependent upon petitioner to help him meet his needs of daily living (see Matter of Arnold, 125 Misc 2d 265 [Sur Ct, Bronx County 1983]). Once it is shown that a confidential relationship existed between petitioner and decedent, an inference of undue influence arises which requires the beneficiary to come forward with an explanation of the circumstances of the transaction (Bazigos v Krukar, 140 AD3d 811 [2d Dept 2016]). Petitioner's allegations regarding the romantic and loving relationship that developed between decedent and petitioner were insufficient to convince this court. In fact, this Court found petitioner's testimony substantially incredible on material issues.
However, even without an inference of undue influence, there was evidence of the influence exerted over decedent by petitioner. All of the parties that prepared documents related to the marriage in time and/ or subject matter (other than petitioner, decedent and city officials) appeared to be chosen by petitioner. Petitioner chose 1) Jing Kang to assist petitioner and decedent in the administrative processes of obtaining a license and getting married; Ms. Kang also served as witness to the marriage; 2) Jacqueline Rayfield, Esq. to prepare a post-nuptial agreement; 3) Yuming Wang, Esq. to prepare a "gift certification" (relating to certain inter vivos gifts from decedent to petitioner) and a "limited power of attorney" (relating to the Berk Trade and Business School) in the months shortly before the marriage and 4) Walter Chin (a Notary Public) to notarize various documents purportedly signed by decedent. Although Notary Chin only saw decedent twice in his lifetime, upon the request of petitioner, Notary Chin summarily executed and affixed his notary stamps and signature to a number of documents on various dates that were purportedly signed by decedent without Notary Chin actually witnessing decedent sign the document. Under the circumstances herein, it appears incredible to this court that decedent, if competent, would not have taken a more active role in choosing the professionals for the drafting of legal documents regarding decedent's property and certain gifts made by him in light of his access to, and probable knowledge of, various legal professionals in his extensive real estate and business dealings throughout the years.
While decedent was not isolated from his family, petitioner did have a great deal of control over the people in decedent's life who helped care for him on a daily basis. The record reflects that decedent met with the co-executors on a regular basis. He also regularly attended family functions. However, petitioner, as decedent's live-in caretaker, was decedent's daily companion who took care of his daily needs. Even more troubling to this Court was the evidence that showed that during decedent's last years, petitioner hired a substitute caretaker to take her place when she was away or otherwise unable to be present to care for decedent herself, such as during visits with her family in China. Essentially, petitioner had control of decedent's daily needs, even when she was not in decedent's presence or in the country.
In addition, the credible evidence showed that the marriage between decedent and petitioner was kept secret until after decedent's death. After the marriage, petitioner even failed to disclose to decedent's physicians that she was decedent's spouse. In fact, while en route to the funeral home following decedent's death in June 2006, petitioner revealed to the co-executors that she had married their father in June 2005. Most telling of the great influence that petitioner had over decedent was a number of notes in evidence that were written by decedent that appeared to be clearly written at the direction of petitioner. The notes in evidence appeared to be dictated [*5]by petitioner. The notes appeared to have been in decedent's handwriting, but contained the unmistakable undertones of petitioner's voice. Petitioner's counsel even conceded during summations that the aforementioned notes contained the "diction" or "dialect" of petitioner.
The evidence presented shows consistent, insidious and duplicitous conduct that led to petitioner's clandestine marriage to decedent. As decedent's live-in caretaker, petitioner had ample motive and opportunity to influence decedent's actions. In light of the evidence of the actions of decedent in this matter, it is crystal clear that petitioner actually exercised undue influence over decedent in entering into a marriage with him.
It is well settled that no one shall be permitted to profit from his/her own fraud, or take advantage of his/her own wrong, or to base any claim upon his/her own iniquity, or to acquire property by his/her own crime (see Riggs v Palmer, 115 NY 506 [1889]). Where a marriage has been wrongfully procured, the statutory right of election which would have been the benefit of such marriage will be forfeited (Campbell v Thomas, 73 AD3d 103 [2d Dept 2010]).
Therefore, this Court finds that, based upon the credible evidence, petitioner knew that decedent was mentally incapacitated at the time of their marriage, and entered into marriage with decedent to obtain the pecuniary benefits of said marriage at the expense of the beneficiaries. This Court further finds that, even if the petitioner was competent, the co-executors have proven by the preponderance of the credible evidence that petitioner exercised undue influence over decedent to induce him to marry her for the pecuniary benefits that became available by virtue of being decedent's spouse, at the expense of the beneficiaries. Thus, through her wrongdoing, petitioner has forfeited her right to take the elective share of decedent's estate as decedent's surviving spouse.
Accordingly, based upon the record, petitioner's petition for decree determining that she is entitled under the provisions of EPTL 5-1.1-A to elect to take her elective share of decedent's estate is hereby denied. Decedent's petition for a decree determining that the notice of election served and filed herein with the clerk of the court has been properly served, filed and recorded as provided by law is also denied as moot."
Wednesday, January 23, 2019
ELDER ABUSE
Matter of Reyes v Reyes, 2019 NY Slip Op 00283, Decided on January 16, 2019, Appellate Division, Second Department:
"The petitioner, age 86, commenced this family offense proceeding against the appellant, who is her grandson, alleging that he had committed, among other things, the family offense of harassment in the second degree. Following a hearing, the Family Court found that the petitioner established, by a preponderance of the evidence, that the appellant had committed the family offense of harassment in the second degree, and issued a two-year order of protection.
A family offense must be established by a "fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Silva v Silva, 125 AD3d 869). The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court, and that court's determination regarding the credibility of witnesses must be given great weight on appeal unless clearly unsupported by the record (see Matter of Magana v Delph, 163 AD3d 673, 674; Robbins v Robbins, 48 AD3d 822).
Here, according due deference to the credibility determinations of the Family Court, a fair preponderance of the evidence adduced at the fact-finding hearing supported a finding that the appellant committed the family offense of harassment in the second degree (Penal Law § 240.25[3]). The evidence demonstrated that the appellant, with the intent to harass, annoy, or alarm the petitioner, engaged in a course of conduct consisting of following the petitioner around her apartment, cursing at the petitioner, and staying in her apartment until all hours of the night, despite her numerous requests that he leave, which alarmed and frightened the petitioner and served no legitimate purpose (see Matter of Jackson v Idlettt, 103 AD3d 723).
Further, the evidence adduced at the hearing supported the issuance of a two-year order of protection (see Matter of Mistretta v Mistretta, 85 AD3d 1034, 1035)."
Wednesday, August 1, 2018
A VERY COMMON FAMILY DISPUTE
This is a common allegation and a common dispute when the caretaker of Mom or Dad is one of the siblings. In this case, we do not have the specific facts but it demonstrates that more than general allegations are needed.
Cascardo v Cascardo, 2018 NY Slip Op 0544,1 Decided on July 25, 2018, Appellate Division, Second Department:
"The plaintiff commenced this action against her brother, inter alia, to recover damages for fraud and breach of fiduciary duty in connection with powers of attorney executed by the parties' father, naming the defendant as his attorney-in-fact. The plaintiff alleges that the defendant fraudulently induced their father to execute a number of powers of attorney, and then used the powers of attorney to sell bonds jointly owned by the plaintiff and their father, close the father's various bank accounts, write checks and carry on banking transactions in the father's name, and obtain the father's social security and pension benefits. The defendant moved, among other things, for summary judgment dismissing the complaint, and the Supreme Court granted that branch of the motion.
In response to the defendant's prima facie showing of entitlement to judgment as a matter of law dismissing the complaint, made through admissible evidence, the plaintiff failed to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 559). The plaintiff failed to present evidence that the defendant committed fraud or used duress or undue influence in connection with the powers of attorney executed by their father or any transaction where he acted as their father's attorney-in-fact, and failed to otherwise present a genuine issue of fact (see generally Ginsburg Dev. Cos., LLC v Carbone, 134 AD3d 890, 892-893; JAF Partners, Inc. v Rondout Sav. Bank, 72 AD3d 898).
The plaintiff's remaining contentions are not properly before this Court.
Accordingly, we agree with the Supreme Court's determination granting that branch of the defendant's motion which was for summary judgment dismissing the complaint."
Wednesday, January 3, 2018
ATTORNEYS AND ELDER ABUSE
Almost all of the last decisions of the 2nd Department in 2017 dealt with attorney discipline.
One stood out, however, was the case of the attorney, who after being appointed a successor guardian of an elderly man, engaged in a series of self-dealings including receiving commissions from the sale of property under a shell company, appointing his wife as geriatric care manager and naming himself as executor and trustee in a will at a time when the elderly man lacked testamentary capacity.
See Matter of D'Angelo, 2017 NY Slip Op 09277, Decided on December 29, 2017, Appellate Division, Second Department
Monday, September 26, 2016
POWER OF ATTORNEY ISSUES
In this case, the names mentioned are an attorney who had himself named as power of attorney and an attorney who prepared the papers. This case is interesting as it describes some potential ethical issues when counsel is asked to prepare these documents.
Matter of Mitchell 2016 NY Slip Op 50853(U) Decided on June 3, 2016 Supreme Court, Kings County Pesce, J.:
"Respondent argues in his post trial memorandum, that this Court should find that the $122,000 in gifts to Mr. Shadoian were proper, because: 1) it is movant's burden to show that the IP was suffering from mental infirmity at the time the gifts were made and that movant had offered no proof as to the IP's debilitated mental status on the specific dates the checks were issued ( See Lee v. Bank of NY, 294 AD2d [2d Dept 2002]; Gala v. Magarinos, 245 AD2d [2d Dept 1997]) and 2) despite the fact that the gifts were made to a fiduciary, there is nothing in the record to indicate that the gifts resulted form undue influence or that they were based on anything other than gratitude, affection and esteem. (See Matter of Hedges, 100 AD2d 586, [2d Dept 1984]).
Movant concedes that, typically, the burden of proving undue influence rests upon the party alleging it. (See Allen v. La Vand , 213 NY 322, 323 [1915]). Movant, however, advances [*6]the convincing and well established argument that if the donee of a transaction has a fiduciary or confidential relationship with the donor, the burden of proof shifts to the party receiving the benefit to prove by clear and convincing evidence that the transaction was fair and free of undue influence. (See Matter of Connelly, 193 AD2d 602 [2d Dept 1993]). Movant cites that this axiom was just reiterated by the Court of Appeals in Matter of Aoki, 27 NY3d 32 (2016) , where the court shifted the burden to the grantee that held a fiduciary relationship with the grantor.
However, an exception to that general rule provides that where a fiduciary relationship exists between the parties, the law of constructive fraud will operate to shift the burden to the party seeking to uphold the transaction to demonstrate the absence of fraud (see Matter of Aoki, supra, 39 citing Matter of Greiff, 92 NY2d 341, 345 [1998]).
It is uncontroverted that at the times of the gifts, to wit: January 23, 2012, April 24, 2012, June 15, 2012 and September 19, 2012, Mr. Shadoian was in two fiduciary relationships with the IP. He was the IP's attorney-in-fact and her health care proxy, and therefore it is Mr. Shadoian's obligation to prove that the IP freely and voluntarily gifted $122,000.00 to him. Under New York law, it is Mr. Shadoian's burden to prove that the IP made $122,000.00 of cash gifts to him knowingly and voluntarily, without the taint of undue influence.
To prove that the IP freely and knowingly made these gifts, Mr. Shadoian called Mr. Gagliardi to testify. Mr. Gagliardi's testimony did nothing to prove that the gifts were voluntary. He spoke to the IP briefly over the phone and met her one time for 30 minutes while the IP was in the company of Mr. Shadoian. Additionally, when Mr. Gagliardi telephoned the IP and she answered the phone and the two spoke, we do not know if Mr. Shadoian was present and influencing the IP. Mr. Gagliardi's testimony was too threadbare to carry much weight. He spent so little time with the IP that his impression cannot be given much weight, especially in light of the fact that Mr. Gagliardi was never informed that APS had intervened in the IP's life, that the IP had been prescribed Alzheimer medication, that she had been hospitalized on several occasions due to her own and Mr. Shadoian's neglect.
Moreover, Mr. Gagliardi failed to make even elementary inquiries as to the actual size of the IP's estate, her medical condition, her social and familial history. Contrary to usual practice, he allowed an unrelated person, designated as beneficiary, to orchestrate the completion and execution of the Will. As to the validity of the Will, it will have to be decided on another day in another court, if the Will ever arrives back in the United States from its sojourn in Iran.Also as Mr. Shadoian's case, two letters, purportedly from medical personnel, placed into evidence by Mr. Shadoian, stating the IP was fine are likewise given little to no weight. These providers were unaware of IP's hospitalizations or history with APS, and their statements are devoid of any medical basis for their declarations."
Wednesday, December 3, 2014
ON ADULT GUARDIANSHIPS
According to an earlier American Bar Association press release:
"In adult guardianship, state courts give one person or entity the duty and power to make personal and/or property decisions for another person who is determined to be incapacitated. Our increasingly mobile society creates complex jurisdictional issues concerning which state should have jurisdiction, how to transfer a guardianship to another state and whether a guardianship in one state will be recognized by another. For example, what happens when an incapacitated person owns property in multiple states? Or when family members, who may need to care for that person, are spread across the country? Which state's laws govern the situation? When conflict occurs, it often means a cumbersome and expensive loss of time and resources for family members, courts and lawyers. Additionally, lack of clear rules of jurisdiction can foster “granny snatching” and other abusive actions.
Because of the myriad problems arising from multi-state guardianship cases, in 2007 the Uniform Law Commission approved the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act to provide a roadmap for addressing dilemmas in such cases."
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