New York Probate Lawyer Blog
As a New York Probate and Guardianship attorney there are many instances where the relationship between third-parties and a Decedent or Incapacitated Person raise cause for concern. The effects of elder abuse or undue influence can disrupt or obliterate what might have been an entirely different disposition of a person’s assets.
The New York Guardian statutes contained in Article 81 of the Mental Hygiene Law make provision for the appointment of a Guardian for a person’s personal needs and property management. The essential element of the statute is appointing a Guardian for someone who is incapacitated. Mental Hygiene Law §81.02 entitled “Power to appoint a guardian of the person and/or property; standard for appointment” provides that incapacity requires a determination that someone is likely to suffer harm because they cannot provide for their needs and are unable to appreciate and understand their disability. In many instances Guardianship proceedings are commenced due to various cognitive and other mental or physical issues which drastically inhibit a person’s ability to function. It is under these circumstances that third parties may take advantage of a person’s vulnerability.
It is not uncommon to find that an incapacitated person’s finances have been manipulated or appropriated. Ownership papers such as deeds and financial accounts may be wrongfully transferred or names added providing for easy access to an unwanted person. Fortunately, the Guardianship laws contain provisions whereby a Guardianship Court can undue this type of damage. Proceedings can be brought in the Court to force a wrongdoer to return or turn over wrongfully obtained assets. Mental Hygiene Law §81.29 allows the Court to revoke a power of attorney, a health care proxy, a contract or conveyance which the Court finds was made during incapacity. However, notwithstanding this broad power, the Guardianship Court cannot revoke a Last Will and Testament. If a Last Will was executed at a time when a person may have been improperly influenced or lacking capacity, the challenge to the document would have to take place after death in the Surrogate’s Court.
Once a person dies, if there is a concern that a Last Will was the subject of undue influence or that a Decedent lacked capacity, objection to the probate of the document would need to be filed in the Surrogate’s Court. Many Wills are contested based upon improper execution, lack of testamentary capacity or undue influence. Also, once an Executor or Administrator is appointed in an estate the fiduciary can commence proceeding against a wrongdoer to recover or have the person turn over assets which rightfully belong to the estate.
Improper transfers and misappropriation of assets relating to elderly or cognitively impaired individuals can happen in all sorts of situations. Even famous people can be taken advantage of. Recently, a lawsuit by the daughter of Stan Lee, the creator of Marvel comics, was settled. The daughter claimed that before Stan Lee’s death at age 95, his business manager manipulated him and misappropriated millions of dollars of items and monetary resources.
As reported by Winston Cho in The Hollywood Reporter on May 2, 2025, in an article entitled “Stan Lee’s Daughter Settles Elder Abuse Lawsuit Against Ex-Manager Accused of Theft” the manager allegedly controlled Stan Lee and stole millions of dollars and valuable collectable items.
As a New York Guardianship and Estate lawyer for more than 40 years, I have represented parties in many cases where improper activities were alleged to have occurred. I have represented families as well as Guardians, Administrators and Executors. Do you have a question regarding an Estate or Guardianship? Call me now for a free confidential consultation. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County, If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.