Much has been written about courts invalidating instruments or transactions after a person's death. Courts invalidating instruments or transactions during a person's lifetime is discussed less often. A mechanism for doing so is found in Article 81 of the Mental Hygiene Law ("MHL"), which governs proceedings to appoint a guardian for an alleged incapacitated person's ("AIP") personal needs or property management. This article examines how courts use MHL § 81.29(d) to protect incapacitated persons.
MHL § 81.29(d) grants the court with the discretion to "modify, amend, or revoke" various legal documents or transactions of an incapacitated person if they were executed or effectuated during that person's incapacity (MHL § 81.29[d]). This provision covers numerous legal documents and transactions, with one significant exception: the statute specifies that the court cannot revoke a will or codicil while the incapacitated person is alive.
Let's look at examples of how courts use MHL § 81.29(d) to protect an incapacitated person and their interests.
Advanced Directives. Article 81 seeks to safeguard the AIP and further their best interests using the least restrictive form of intervention. Advanced directives, such as a power of attorney ("POA") or a health care proxy, are far less restrictive than guardianship and can eliminate the need for one if the advanced directives work effectively (Matter of Isadora R., 5 AD3d 494 [2d Dept 2004]).
That said, if the advanced directives of an incapacitated person are ineffective, misused, or executed during their incapacity, the court can revoke them. For instance, in the case of Matter of Susan Jane G., the Supreme Court revoked the incapacitated person's POA due to her incapacity when she signed it (Matter of Susan Jane G., 33 AD3d 700, 701 [2d Dept 2006]).
Even if the principal (i.e., the person who created the POA) was competent when they executed the POA, MHL § 81.29(d) also provides the court the discretion to revoke it if it finds the agent breached their fiduciary duties (Matter of Walter K.H., 31 Misc 3d 1233[A], 1233A, 2011 NY Slip Op 50969[U], *5 [Sup Ct, Erie County 2011]). In such cases, the former agent must account to the guardian (id.; MHL § 81.29[d]).
Trusts. In Rita R., the Appellate Division, Second Department upheld the Surrogate's Court order that invalidated a trust agreement, power of attorney, and health care proxy (Matter of Rita R., 26 AD3d 502, 503 [2d Dept 2006]). The Second Department then went one step further by invalidating Rita's will, which was executed around the same time. This decision preceded the legislature's amendment of MHL § 81.29(d) in 2008, which prohibited a court from revoking an incapacitated person's will or codicil.1
Although MHL § 81.29(d) cannot currently be used to invalidate a will, when a court invalidates a lifetime trust based on the grantor's lack of capacity and the exercise of undue influence on the grantor, those findings will act as claim preclusion in a later proceeding to probate the will of the incapacitated person executed on the same date as the lifetime trust (Matter of Kronik, 192 AD3d 489, 490 [1st Dept 2021]).
Gifts. With an aging population, it is becoming increasingly common for courts to set aside alleged gifts made by incapacitated individuals in guardianship proceedings (see Matter of Shapiro, 2001 N.Y. Misc. LEXIS 1359 [Sup. Ct., Nassau County, Apr. 19, 2001]). In Shapiro, the incapacitated person, Florence, "gave" $680,000 — nearly all her liquid assets — to her next-door neighbor and her four children, with whom she lived for five weeks under questionable circumstances. When Florence tried to leave the neighbor's home, she was carried back over the neighbor's husband's shoulder to the neighbor's residence. The Supreme Court voided the dubious transactions.
Deeds. Litigation over deed fraud and similar matters also seems to be on the rise. In Matter of Nurse, Rupert A.N. conveyed a 50% ownership interest in his property to his stepson (Matter of Nurse, 160 AD3d 745, 746 [2d Dept 2018]). Soon after, his biological children petitioned to become their father's guardians. After a hearing established that Rupert had dementia, the Supreme Court adjudicated him an incapacitated person and appointed his biological children as his co-guardians. Then, the petitioners moved to set aside the deed on the grounds of undue influence and Rupert's incapacity at that time. After another hearing, the court determined that the petitioners had proved, by clear and convincing evidence, that Rupert was incapacitated when the deed was executed and that the instrument resulted from the stepson's undue influence. The court declared the deed null and void, and the Appellate Division, Second Department, affirmed.
Marriages. Some of the more interesting cases involve undoing the marriage of an incapacitated person.2 Recently, in Matter of John M., The Appellate Division, First Department affirmed the Supreme Court Order which determined that John M. was incapacitated when he entered into a marriage, and thus "the marriage was null and void and of no effect ab initio" (Matter of John M. (Rebecca L.—Helen E.), ___AD3d___, 225 NYS3d 218, 219, 2025 NY Slip Op 00158, *1 [1st Dept 2025]). The First Department explained that marriage is a contract, and under MHL § 81.29(d), that contract can be revoked if it is established that it was made while the person was incapacitated (id.).
The hearing in the Supreme Court uncovered some interesting facts. John M., a Yale Law School graduate, began experiencing memory issues in 2019 (Matter of John M., 79 Misc 3d 1230[A], 2023 NY Slip Op 50750[U], *2 [Sup Ct, NY County 2023]). The following year, he moved from his apartment in New York City to a senior living community in Connecticut. In 2021, John began experiencing difficulties, including getting lost and locking himself out of his residence. One night, he even belted out the French national anthem at the door of another resident. So the senior living community required John to have a full-time aide in order to continue residing there. In September 2021, when John moved back to his apartment, his aide, Helen E., followed him. While under Helen's "care," he left his stove on several times, fell victim to a scam, and neglected to pay his taxes, maintenance, and utilities.
John's daughter discovered that her father's aide, Helen, had moved in with him, isolated him, and tried to marry him in order to obtain U.S. citizenship. As a result, his daughter initiated a guardianship proceeding. In September 2022, the Supreme Court determined that John was incapacitated and appointed an independent guardian to manage his personal needs, while John's daughter served as guardian of his property.
When the guardians discovered that John and Helen were married in June 2022, they brought an application to annul the marriage on the grounds that John lacked capacity to enter into a marriage. During the hearing, it was established that before successfully marrying John, Helen had made two attempts that were thwarted because John did not have a copy of his divorce decree, and a clerk considered John incompetent to marry. Based on these facts, the Court declared the marriage "null and void and of no effect ab initio" (id.).
To sum up, MHL § 81.29(d) is an effective tool to invalidate certain documents and transactions in guardianship proceedings. But courts are wary of parties engaging in pre-death estate litigation for their own benefit rather than that of the AIP. Article 81 indeed empowers the court to charge a petitioner for the attorney's fees incurred by court-appointees if the petition to appoint a guardian is either dismissed or withdrawn and the proceeding was initiated in bad faith (Matter of Marjorie T., 84 AD3d 1255, 1255 [2d Dept 2011]). So it is crucial to act in the genuine best interest of the AIP.
Footnotes
1. There are several reasons the legislature distinguished wills from other instruments. First, the objective of a guardianship proceeding is to safeguard an AIP during their life. Wills become effective only after death, so their validity is not the guardianship court's concern. Second, wills are ambulatory and less capacity is required for a will than for any other legal document in this State, so a valid will can be created even after a person is adjudicated incapacitated under MHL Article 81. Third, the parties involved in guardianship and probate proceedings often differ, raising due process concerns if a guardianship court invalidates a will that adversely affects parties who were not notified. Fourth, guardianship proceedings are special proceedings governed by CPLR Article 4, which allows for significantly less discovery than in a will contest.
2. See for example, Matter of Edgar V.L., 228 AD3d 549, 551 (1st Dept 2024).
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