Papers considered in review of the motion:

PapersNumbered: [*2]

Notice of Motion, OSC, Petitions, affs. & exhibits....................................................1,2,3.

Cross- Petition, affs. & exhibits.................................................................................4.

By: Honorable Betsy Barros, JSC

This guardianship case highlights the predation and exploitation that face the aged and incapacitated. In the case at bar, the predator, through seduction and feigned concern for him gained the incapacitated person's total co-operation in her scheme to convert of all his assets to herself. His doctors at the VA hospital, suspicious of his recent marriage and aware of his dementia failed to report their concerns, his banking institutions failed to act in a timely manner so as to thwart her scheme, and his appointed agent failed to intercede effectively. Law enforcement has done nothing to protect the incapacitated person or to restore his funds. The only shelter afforded this victim came in the context of this civil proceeding, an intervention that unfortunately came much too late.

Dementia robs its victims of their reason and judgment bit by bit. This case is but one version of the all-too familiar tale of an elderly individual, afflicted with dementia who becomes so impaired that he is lulled into a trusting relationship and a false sense of securityby a predator.

GENESIS OF THE CASE

Petitioner, Adult Protective Services("APS " or Petitioner"), by order to show cause, by petition, verified on June 11, 2012, and by supporting Doctor's Affirmation dated May 9, 2012 seeks the appointment of a guardian for the respondent,an 83 year-old alleged incapacitated person ( "AIP"). APS's investigation and filing of the matter was prompted by reports of financial exploitation of the AIP by Vanessa Taylor Spier ("Vanessa TS" or "Cross-Petitioner"), the AIP's 46 year- old wife, who had been his former home aide and whom he married one year ago. ^[FN1] Vanessa TS cross- petitioned, requesting dismissal of said petition, or in the alternative to be appointed the AIP's personal and property guardian.

PENDENTE LITE ORDERS NECESSARY TO PROTECT THE AIP

During the pendency of the case, this court issued several pendente lite orders designed to ensure the AIP's physical safety, prevent further dissipation of his assets, allow a thorough investigation of the matter, and pay for the AIP's home care, to wit: 1. On June 22, 2012, an order restraining the Cross- Petitioner from accessing any funds belonging to the AIP or in which the AIP had an equitable interest; 2. On August 17, 2012, an order appointing a geriatric care manager because the AIP was neglected and to ascertain if he could be safely maintained in his four-story walk up; 3. On September 21, 2012, an order appointing a Temporary Guardian to protect the AIP's person and property since Vanessa T.S. was not adequately providing for him and to contract for home care;^[FN2] 4. On September 21, 2012, an order that Vanessa TS admit the [*3]Court Evaluator into the AIP's apartment ^[FN3] so that the investigation and report could be completed; 5. On September 25, 2012, an order restraining Morgan Stanley from allowing Vanessa TS to withdraw any funds;. 6. On November 30, 2012, an order for emergency spousal support against Cross- Petitioner pursuant to Family Court Act§442 .^[FN4]

THE HEARING

The hearing was conducted over two days and testimony was adduced from Fred Moskowitz, the court appointed geriatric care manager, Eric Nelson Esq., the Court Evaluator, Dr. Ralph Speken, a psychiatrist employed by HRA, Brian McKenna, the AIP's friend ("Brian"), and Vanessa TS. The AIP was present throughout the proceedings, but did not testify. Extensive medical and financial records dating back several years were submitted into evidence.

TESTIMONY OF BRIAN MCKENNA

Mr. Brian McKenna , the AIP's friend of twenty years and his former attorney-in-fact, testified about the AIP's character, finances, and post-retirement history.^[FN5] After retirement, the AIP maintained an active social life, according to Brian and had a circle of neighborhood friends. He was bright, generous, and gregarious. The AIP was fastidious about his appearance and the maintenance of his apartment.(Hr'g Tr. pp. 125,143-144, April 8, 2013) He managed his own affairs, scheduled and maintained regular doctor and dental appointments, and had saved sufficient funds for his retirement. (Hr'g Tr., p. 151, April 8, 2013). In 2008 the AIP's had some $350,000.00held in a Morgan Stanley Account.^[FN6] (Hr'g Tr., p.151, April 8, 2013). [*4]

Employed by the local hospital, Long Island College Hospital, and now living in Pennsylvania, Brian met the AIP when Brian resided in the AIP's neighborhood. Brian testified that they became friends in part because they shared a common history. Both of them had grown up orphaned. As he became increasingly physically and cognitively compromised, the AIP paid Brian nominal sums to do some light cleaning, to accompany him to medical appointments, and to pay bills. As part of this informal arrangement, Brian, the younger man, looked after the AIP and his affairs, which included checking on the AIP at his residence. He was available to the AIP during various crises. Specifically, Brian recalled a time when he found the AIP stuck in his bathtub, neck deep in water after having suffered a fall and another time when the AIP wandered disoriented into the local hospital clad in his underwear.(Hr'g Tr., pp122-124, April 8, 2013). After the AIP developed problems ambulating Brian assisted him with shopping. In time, the AIP gradually began requiring greater assistance with his activities of daily living ("ADLS").

Apart from the compensation received for the services rendered, Brian acknowledged having received a one time loan of $700.00, which was repaid, and some small gifts over the years.(Hr'g Tr., pp. 202-203, April 8, 2013) Brian and the AIP used the AIP's ATM card to make withdrawals for some of the AIP's monthly expenses. Around 2006Brain became the "In Trust For" designee on the AIP's Morgan Stanley account. And, prior to a scheduled hospitalization, the AIP designated Brian as his attorney-in-fact. (Hr'g Tr., pp. 116-118, April 8, 2013) The AIP also designated Brian as his health care proxy. (Hr'g Tr., pp. 120-121,191, April 8, 2013) Brian used the Power of Attorney (POA) on a few limited occasions. The only large withdrawal Brian made as POA was sometime after the AIP was discharged from his longest hospital stay. At the AIP's behest, Brian gave Jimmy Wilson, the Cross-Petitioner's boyfriend, $1,000.00 in cash, presumably to pay Jimmy and Vanessa's back rent. Suspicious of said transaction, Brian obtained a receipt from Jimmy.(Hr'g Tr., pp.130, 176-177, April 8, 2013) The only other occasion Brian used the POA was to interface with the AIP's banking institutions regarding a flurry of large withdrawals brought to his attention by Chase.(Hr'g Tr., p.151, April 8, 2013) Brian brought the AIP to the bank where the two conferred with bank employees. When the bank employees and Brian questioned the AIP about the troubling withdrawals, he expressed no knowledge of the transactions. (Hr'g Tr., pp. 152-153, April 8, 2013) Apparently, the AIP was unable to comprehend that he had most likely been the victim of financial exploitation or fraud. (Hr'g Tr., pp. 152-153, April 8, 2013)

Approximately seven years ago, the AIP began experiencing serious health problems which resulted in three hospitalizations. The most seriousone requiring a right hip replacement, resulted in an eleven month stay in the VA hospital and a rehabilitation center.^[FN7] [*5]

It was during this long term stay at the VA hospital that the AIP was befriended by the Cross- Petitioner and her boyfriend, Jimmy Wilson, also a long term patient at the rehabilitation center. Upon his discharge in 2008, the AIP was in a weakened state and became increasingly cognitively impaired, ^[FN8] and Vanessa TS became his part-time home attendant. Thereafter, she informed Brian that since she would be attending to the AIP's finances and other needs, his services were no longer needed. Vanessa TS changed the AIP's phone number, and to avoid her increasing hostility, Brian limited his visits with the AIP to mornings, a time preceding Vanessa TS' arrival at the AIP's home. (Hr'g Tr., pp.167, 171-172, 174, April 8, 2013)

In November 2009 Vanessa TS became the POD designee on the AIP's accounts. In October 2010 unbeknownst to Brian, the AIP revoked Brian's POA, and Vanessa TS became the AIP's POA (Hr'g Tr., pp.146, April 8, 2013) And, finally, in April 2011, they wed. Neither the AIP nor Vanessa TS ever told Brian that they had married .^[FN9] (Hr'g Tr., pp.173, April 8, 2013)

CROSS-PETITIONER'S TESTIMONY

Vanessa TS testified that she cares deeply about the AIP and that her attachment and affection for the him was inspired by the 80 year old's chivalrous defense of her against Jimmy Wilson, her violent abusive boyfriend. ^[FN10] She denied any knowledge of the money Jimmy received from Brian at the AIP's request, and asserted that she changed the AIP's phone number because Brian's calls bothered the AIP.(Hr'g Tr., pp. 436-438, 442, April 12, 2013)

Shortly after she began working for him, the AIP initiated their romance. They were married on April 29, 2011. Despite their marriage, no reliable evidence of co-habitation was introduced.. Asked whether she and the AIP had sex, she responded "I guess you can call it that.", and laughed . (Hr'g Tr., pp. 426, April 12, 2013)

Cross-Petitioner denied orchestrating the AIP's rapid pauperization which commenced soon after they met. She stated that the AIP, independently of her, made all his own financial decisions. She explained that he had moved his investment accounts into savings accounts so that he could do as he pleased with his money whenever he wanted to. (Hr'g Tr., pp. 431-432, April 12, 2013) Admittedly present during the banking withdrawals, the Cross-Petitioner gave no acceptable explanation for why she and the AIP drained his accounts, nor of how the money was spent.(Hr'g Tr.,pp.408-411, April 12, 2013)) She also failed to offer a plan of how she would [*6]provide for her husband now that he was destitute.^[FN11] Instead, she focused on the intrusions this proceeding caused in her life, the inadequacy of AIP's studio apartment, the expense of his home care and whether there were sufficient funds to purchase an apartment. (Hr'g Tr., pp. 439, 447-449, April 12, 2013) She also admitted that she had not filed or given any thought to straightening out the AIP's tax filings, a responsibility which, she acknowledged, Brian had executed. (Hr'g Tr., pp. 433, April 12, 2013)

TESTIMONY OF DR. RALPH SPEKEN

Dr. Speken, an expert in adult psychiatry, employed by APS, rendered compelling testimony regarding the AIP's mental state, his cognitive decline and the impact of the AIP's illness upon his ability to function. In February 2012, Dr. Speken, at APS' direction, conducted an assessment of the AIP's mental capacity. His findings were based on an extensive interview of the AIP and a review of the AIP's VA medical records dating back several years.(Hr'g Tr. pp.227, April 12, 2013)

In the early evening of February 2, 2012, Dr. Speken, accompanied by a female APS case worker, interviewed the AIP in his apartment. The AIP was alone and opened the door clad in only a tee-shirt and dirty underwear. When asked by the case worker to clothe himself, the AIP refused and remained in his underwear throughout the interview, seemingly oblivious to the way he appeared.(Hr'g Tr., pp. 231-232, April 12, 2013, Dr. Speken aff in support of petition, datedMay 9, 2012) Although the AIP cooperated with the interview, little reliable or credible information was obtained from the AIP about his history or the adequacy of his current circumstances.

Dr. Speken found the AIP's short term and long term memory significantly impaired, as evidenced by the AIP's inability to recall fundamental milestones in his life, such as details regarding his World War II military service, past family life, work history, or even his present wife's name. (Hr'g Tr.,pp. 240-241, April 12, 2013)Dr. Speken also diagnosed the AIP as delusional, pointing out that the AIP believed himself to be the son of Albert Speer, a notorious Nazi official, merely because the AIP and Albert Speer shared a similar sounding last name and because his Jewish mother's birthplace may have been Germany. (Hr'g Tr., pp. 232, 279-284, April 12, 2013) Dr. Speken further pointed out that during the interview, the AIP engaged in "Witzelsucht " -inappropriate humor to cover up memory failure- a behavior characteristic of individuals with frontal lobe disease.(Hr'g Tr.,pp. 240, 243-244, 293-294, April 12, 2013)

Overall, Dr. Speken found the AIP's memory, judgment, and insight impaired and rendered a diagnosis of rapidly advancing Alzheimer's disease. He determined the onset of the disease to have occurred back in 2009.^[FN12] (Hr'g Tr.,pp. 234-235, 243, 290, April 12, 2013; pp. 2-3, Dr. Speken aff in support of petition, datedMay 9, 2012) Dr. Speken's findings were supported by a neuropsychological assessment made nearly one year prior to his own [*7]evaluation, which found the AIP's executive functioning "globally impaired " and his ability to verbalize, recall, and recognize severely impaired.^[FN13]Both evaluations reveal that the AIP's compromised mental state existed for a number of years prior to this proceeding.^[FN14] (Hr'g Tr., pp. 315, April 12, 2013)

Dr. Spekenfound the AIP vulnerable and susceptible to exploitation and easily influenced due to his dementia and opined that the AIP did not possess the requisite mental capacity to consent to marriage at the time the marriage purportedly occurred.(Hr'g Tr., pp. 297-98, 302-304, April 12, 2013) He explained that, "when the executive functioning is impaired, individuals suffering from dementia are vulnerable to permitting someone else's executive functioning to take over for them and therefore....they lack the ability to withstand it." (Hr'g Tr., pp.299, April 12, 2013) In sum, Dr. Speken concluded that the AIP is incapable of making an informed judgment on how to handle his estate, whom to trust, and whom to marry .^[FN15]

COURT EVALUATOR

The Court Evaluator gave extensive testimony and provided a well-documented accounting regarding the depletion of the AIP's estate. He also obtained medical records tracking the course of the AIP's medical and mental decline. Moreover, since concerns were raised about the AIP's personal safety, the Court Evaluator was asked to check in on the AIP until proper services were obtained. Shortly after his appointment, the Court Evaluator reported back that the AIP had been found wandering in his apartment building late at night ringing his neighbors' doorbells and that neighbors in his building had raised concerns about his welfare.^[FN16]

According to the Court Evaluator and uncontroverted in the record , the AIP's entire estate totaling between $350,000.00 to $450,000.00 is gone. The Cross-Petitioner's financial exploitation of the AIP commenced no later than 2009. Initially, the Cross-Petitioner confined [*8]her exploitation to the AIP's income and had him pay some of her bills. ^[FN17] Over time she accessed his savings and investments accounts at an increasing rate. (Hr'g Tr., pp. 359-361, April 12, 2013) The amounts and frequency of her withdrawals grew commensurate with the degree of the AIP's dementia.After the marriage she took the remainder of the AIP's life's savings, leaving him pauperized and with credit card debt.^[FN18]

The Court Evaluator's investigation revealed Brian reported the Cross-Petitioner'sfinancial exploitation of the AIP to the DA's office and an investigation was commenced. However, once the Cross-Petitioner and AIP married, the DA's office ceased its investigation.(Hr'g Tr., pp. 345-346, April 12, 2013)

OBSERVATIONS OF THE PARTIES

During the hearing the Court had ample opportunity to observe the litigants' demeanor in the court room and draw conclusions and inferences therefrom.

The AIP

The limitations on the AIP's cognitive abilities and physical fragility were readily apparent from the bench as were certain aspects of his overall personality. Although represented by counsel and present throughout the proceedings, the AIP did not testify or meaningfully participate. He ambulated with a walker, required an aide at his side, and tired easily. He dozed off frequently during the proceedings. When alert, he engaged primarily in attempts at humor, blurting out such non-sequiturs as, "I had dementia", "get the marbles out of your mouth", and " I am a different person," behavior consistent with Dr. Speken's diagnosis of Witzelsucht. Obviously entranced by his wife, he randomly shouted out, "that's my wife!". At other times, he would struggle out his chair and wander aimlessly about the court room seemingly oblivious of the fact that a trial concerning his welfare was taking place.

The Cross-Petitioner

On the stand, the Cross-Petitioner was evasive, and inconsistent regarding her employment history and her place of residence. Throughout the proceedings, Vanessa TS engaged in overt displays of affection toward the AIP by kissing his lips and by staying close and attentive to him.The court found the Cross-Petitioner's behavior not only inappropriate, but a thinly veiled ploy to keep the AIP under her sway and to create the false impression that she is a loving wife and a responsible caretaker. The Court found Vanessa TS disingenuous, [*9]manipulative and neglectful as a spouse and care-taker and gave her testimony no credit. Her strictly pecuniary interest for insinuating herself into the AIP's life was utterly apparent.

Legal Analysis

It is uncontroverted that the AIP is an incapacitatedperson within the meaning of Article 81 of the Mental Hygiene Law. (See, MHL§§81.01 and §81.02, generally) Cognitively and physically impaired, he requires assistance with all of his ADLs(MHL §81.02 ( c) 1 and MHL 81.03 (h) ). His impairments imperil his safety and welfare, and he is unaware of his functional limitations.(MHL §81.02 (a) 1 and MHL §81.02 (b) 2. The AIP cannot handle his financial affairs (MHL §81.02 (a) 1) and lacks the capacity and judgment to duly designate a trustworthy individual to assume these responsibilities. (MHL§§ 81.02 (b) 1., and 2.. §81.03 (e))

In 2006, the AIP took affirmative steps to protect himself by appointing his most trusted friend, Brian, as his attorney-in-fact and health care proxy, and placed "In Trust For" designations on his accounts.^[FN19] Ordinarily, these advance directives, in the hands of an appropriate agent, wouldsuffice and a guardian would not be required. (MHL §81.01, §81.02 , §81.03 (e)) However, the POA appointing Brian was purportedly revoked by the AIP, no doubt at the behest of the Cross-Petitioner.^[FN20] Since the AIP no longer has sufficient capacity to designate an agent and no suitable family is available, this court is compelled to appoint a guardian to establish a plan of care for him.^[FN21]

FINDINGS AND CONCLUSIONS

This court finds the AIP to be an incapacitated person as defined by Article 81 of the Mental Hygiene Law and that guardianship is the least restrictive form of intervention and will not appoint the Cross-Petitioner Guardian.

Through a steady course of seduction and isolation, and veiled in the cloak of marriage, Vanessa TS has managed to exploit the AIP with impunity. As a consequence, the AIP in all likelihood, can no longer be safely maintained in the community as he had once envisioned.

Sadly this case is not an isolated incident of financial exploitation of the incapacitated. Often seniors afflicted with dementia, in the twilight phase between capacity and incapacity, are exploited in plain sight with devastating consequences to the victims. The predators are seldom held accountable. [*10]

Efforts to redress elder abuse are still in their infancy. However, similar challenges have been met and tremendous strides made in "difficult to prosecute" cases such as domestic violence, child abuse and sexual offenses. If our community is serious about protecting its most vulnerable adults, new initiatives and coordinated strategies must likewise be developed and implemented.^[FN22]

Accordingly, based on the foregoing; it is hereby

ORDERED AND ADJUDGED that the Petitioner's nominated guardian Jewish Association of Services for the Aged (JASA), with offices at 132 West 31 Street, New York, NY 10001, and telephone number: 212-273-5300, is appointed guardian for both personal and property needs of the AIP; and it is further

ORDERED AND ADJUDGED that the guardian shall investigate the AIP's financial affairs and has authority to bring any appropriate applications on behalf of the AIP including a turnover proceeding and /or a motion to annul or void the marriage between the AIP and the Cross-Petitioner; and it is further

ORDERED AND ADJUDGED that the previously suspended Power of Attorney appointing the Cross-Petitioner and any health care proxy heretofore executed naming Cross-Petitioner as agent are hereby vacated; and it is further

ORDERED AND ADJUDGED pursuant to MHL §81.23 (b) that the Cross-Petitioner is hereby restrained from selling or in any way disposing of the BMW bought with the AIP's funds; and it is further

ORDERED AND ADJUDGED that all previously issued TROs and the order of spousal support shall remain in full force and effect until further order of this court; and it is further

ORDERED AND ADJUDGED that the Cross-Petition is denied in it's entirety; and it is further

ORDERED AND ADJUDGED that all fees and expenses of this proceeding shall be paid by the Cross-Petitioner^[FN23]; and it is further

ORDERED, that Petitioner shall serve a copy of this order on the Cross-Petitioner and her counsel forthwith; and it is further

ORDERED, Petitioner shall settle an order of appointment consistent with the foregoing [*11]decision and order or appear in court on July 18th 2013 in Part 76G at 10:00 am.

This constitutes the decision and order of this court..

Enter:

Dated: June 21, 2013_________________________

Brooklyn, New YorkBetsy Barros, JSC