Mental Capacity and Marriage in New York, Part 3: The Secret Marriage

Marriage fraud has always had as a consequence the disruption of family estate planning, or even the potential of an unfair result where the state's intestate laws are applied when the decedent dies without a Will.  But if the bride or groom suffers from dementia and their fiance(e) has been in a caregiver position, the resulting marriage could be considered a form of elder abuse because the person suffering from dementia is being exploited for financial reasons.

Consider the case in Matter of Berk, 2010 NY Slip Op 02139 [2d Dept 2010]).  Irving Berk was a very successful businessman, having founded the Berk Trade and Business School.  In 1982, he executed a Will naming his sons Joel and Harvey as co-executors.  Over the next few years, Irving's memory began to fail.  His physical health also deteriorated, and he became wheelchair bound.    In 1997 his sons decided to hire a live-in caregiver. At the time, Irving Berk was 91 years old.  His caregiver, a recent immigrant from China named Hua Wang (also known as Judy Wang), was 40 years old.

Friends of Irving reported that Wang took advantage of Berk's increasing dependency on her, and that she physically and verbally abused him.  By 2005 Irving Berk could no longer recognize his sons who by then were contemplating guardianship proceedings.   As part of this process, Irving was examined in April 2007 by a physician who diagnosed him as having dementia and stated that Berk did not possess the mental capacity to enter into contracts.  His family physician who examined him a short time later found that Irving did not have the mental capacity to handle his social affairs.

Nevertheless, on 17 June 2005 Irving Berk and Judy Wang were married in the civil ceremony in the New York City Clerk's Office.   The marriage was kept a secret.  Neither Berk nor Wang wore wedding bands thereafter, nor did family and friends ever witness displays of affection between them.

On 16 June 2006, Irving Berk died leaving an estate worth more than $5 million.  The day before the funeral, Wang informed his sons of the secret marriage as they drove to the funeral home.  When the Will was read, it was discovered that Irving Berk had never changed his Will to make his new wife a beneficiary.  The named beneficiaries remained his two sons and four grandchildren.  Because Irving had made no provision for his new wife in the Will, Judy was now entitled to ask for the elective share. 

On 29 December 2006, after the Will was filed for probate and within the requisite six months after the Will was probated, Judy Wang Berk petitioned the Surrogate's Court in King's County for a determination of her right to take her elective share as Irving's surviving spouse.  Under New York law, the surviving spouse is entitled to $50,000 or one-third of the decedent spouse's estate, whichever is greater.   The Surrogate found that Judy was married to the decedent at the time of his death and that, as a matter of law, she was entitled to her elective share under EPTL 5-1.1-A [a].

Berk's sons appealed.  The Appellate Division, Second Department found that Judy Wang had married Irving Berk in the full knowledge that he lacked the mental capacity to consent to a marriage.   Under the principles of equity, the court found that Wang should thus not be unjustly enriched because she took unfair advantage of Berk's mental incapacity at the time of their marriage.

Over 5 million people are affected by Alzheimer's disease and other forms of dementia, and this number is expected to grow.  The time is now to protect your assets and your loved ones.  You cannot afford to wait for a diagnosis because once you have been diagnosed with dementia, your diminished mental capacity will prevent you from taking the necessary legal steps to protect yourself, your property, and your family.

What can you do to protect yourself?  Irving Berk had a Will, after all.  A Will is certainly a good first step, but it is not enough.  Unless the Will has been carefully drafted by an attorney to make sure that it is in compliance with New York Law and contains the necessary language about the elective share so as to mitigate against unscrupulous persons, then the door is left open for a sham marriage or other forms of unjust enrichment to occur.  Do-it-yourself online wills should be used with extreme caution or not at all as a result.

Secondly, you should meet with your attorney at least once a year in the same way that you meet with your doctor for your annual physical exam.  Your attorney will ask you questions to determine what has changed in your personal and legal affairs, and may suggest redoing your Will or adding a codicil based upon your responses.  Your attorney will also evaluate your mental capacity as you answer the questions.  If the attorney determines that there is a doubt about your mental capacity, then your attorney will strongly advise that any codicils or new Will be videotaped during the execution ceremony.  This service is worth its weight in gold.

Next, your attorney may suggest that you place you assets into a trust.  If you go this route, you may want to execute a pour-over Will, meaning that your assets will go directly into the trust at the time of your death, to be administered according to the terms of the trust.  Remember that assets such as bank accounts and property that can be held jointly are vulnerable to sham marriage schemes.  You may want to re-title these in the name of the trust.  Note that trusts are contracts, and that contracts require the highest level of mental capacity in New York.  If you wait too long, you may not have the requisite mental capacity to execute the trust documents.

You will also need full mental capacity to give a durable power of attorney to someone you trust or to your bank so that your affairs can be managed should you lose mental capacity.  Your attorney will discuss these options with you in detail so that you comfortable with your choices.

Finally, your attorney will review your planning for medical decision-making including having a living Will and a health care proxy.  These are known as advance directives.   The case does not disclose whether Irving Berk had these instruments in place.  If he did not, Judy Wang Berk as his legal wife would have been the one to make the decisions about his health care, and not his sons.

If you would like to discuss your own personal situation with me, you can get a free 30-minute consultation  simply by filling out this contact form.   I will get back to you promptly.

I invite you to join my list of subscribers to this blog by clicking on "Subscribe to" on the left-hand side of the page so that you can receive a notification when the next installment has been published. Thank you.

Hospital Visitation Rights in New York after President Obama's Mandate

On 15 April 2010, President Obama extended the right of a patient to designate hospital visitation to persons not legally related to the patient through a legally valid advance directive, such as a durable power of attorney or a health care proxy.   This new right will apply to any hospital receiving Medicare or Medicaid funding.  President Obama ordered the Secretary of Health and Human Services to draft new rules for hospitals that receive any Medicare or Medicaid funding.   Persons most affected by this new mandate are unmarried couples including same-sex couples, widows and widowers without children, and persons belonging to religious orders.  

According to newspaper reports, President Obama was deeply moved by the case of Janice Langbehn whose partner of 18 years died alone in a Florida hospital while they were on vacation with their adopted children.  Langbehn sued the hospital over visitation rights in federal court, and in September of 2009 the U.S. District Court for the Southern District of Florida dismissed the suit on the grounds that “the hospital has neither an obligation to allow their patients’ visitors nor any obligation whatsoever to provide their patients’ families, healthcare surrogates, or visitors with access to patients in their trauma unit.”

How does this new mandate affect persons living in New York?  Public Health Law § 2965 currently gives the same-sex partner of an incapacitated person the right to make medical decisions on behalf of the patient.  But there is an important distinction under that law:  the same-sex partner has the right as a "close friend" and not as a life partner.  That means that, under the current statute, the decisions of close relatives such as parents, siblings, and adult children trump the decisions of the patient's intimate life partner.  The Obama mandate will grant the patient the right to designate his or her life partner and give that person the same rights over medical directives that a spouse or close relative currently holds.  That means that the decisions of the designee will no longer be in a position to be countermanded by family members who may not know the patient's wishes as intimately as the partner.

As to hospital visitation in New York, Public Health Law § 2805-q. already grants this right to registered domestic partners, whether gay or straight.  In New York City, domestic partnership registration is handled through the office of the City Clerk.  The requirements for domestic partnership registration are listed on the City Clerk's website, and the forms are also available online.  The website also lists the rights granted to the holders of the certificate of domestic partnership including "visitation in facilities operated by the New York City Health and Hospitals Corporation." 

In addition, in 2002 the City Council passed a bill that conferred New York City domestic partnership status to registered domestic partners, members of civil unions or gay marriages from other jurisdictions who move to New York City.  The new law eliminated the prior one-year waiting period for these couples or the cost and time associated with re-registering in order to access the benefits conferred immediately on resident domestic partners. 

President Obama's new mandate still requires that the designation of visitation rights to someone not legally related to the patient be through a legally valid advance directive such as a health care proxy.    In New York, a durable power of attorney is not sufficient for health care directives.  New York requires a health care proxy form.  New York State provides this form online.  Appointing someone as your health care agent takes serious consideration, and I encourage you to discuss the issues with your attorney.  In addition, New York's Public Health Law § 2981 requires certain formalities:  that a health care proxy be signed and dated by the adult in the presence of two adult witnesses who must also sign the proxy. 

Finally, it is well to note that a health care proxy is not a living will.  A living will sets out in clear language your wishes and instructions about your health care.  But because no one can know with precision the scope of health care decisions that may arise, the appointment of a health care proxy should be strongly considered when drafting a living will.  In my opinion, both documents are essential components of any estate plan and should be reviewed yearly to be sure that the directives and the agent still meet your needs and wishes.