In a recent case in Nassau county before Judge Gary Knoble the Commissioner of the Nassau County Department of Social Services brought a guardianship case pursuant to Article 81 of the Mental Hygiene Law. The issue presented to the court was to determine whether to set aside advanced directives executed in 2019 by Nancy Kay, an alleged incapacitated person. In addition, whether the marriage of Nancy Kay in 2020 between Nancy Kay and the individual who had a cross petition should be set aside on the ground that Nancy Kay lacked the mental capacity to enter into a marriage. The issue presented was whether there was clear and convincing evidence or a preponderance should be applied by the court in determining these issues.
Justice Knoble held Nancy Kay was a victim of elder abuse. The cross petitioner had taken advantage of her. She was suffering from dementia. Justice Knoble took note it is unusual for a court in an Article 81 guardianship to be presented with the issue of setting aside a marriage. In this case, pursuant to the Article 81 guardianship proceeding the court had appointed a guardian for Nancy Kay. The Guardian found her to be an incapacitated person. Judge Knoble therefore declared her marriage null and void on the ground that she lacked the mental capacity at the time the marriage was entered into to knowingly and intelligently enter into the marriage.
Elliot S. Schlissel, Esq. is the managing partner of Schlissel DeCorpo LLP. The law firm represents clients in all aspects of wills, trust and estates in estate cases. He can be reached for a free consultation at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.
