Imagine the horror experienced by a family grieving the loss of a loved one after a long decline involving significant dementia, when a former caregiver informs them that she and the recently deceased family member were married (surprise). Litigation Attorney Michael Fedalen advises how to avoid this increasingly prevalent trend in elder abuse in his Wealth Management article, “Surprise: Dad Married His Caretaker.”
Some states contain a gaping hole in their statutory scheme to protect seniors from exploitation and abuse. There are two options to protect a loved one with diminished capacity from an exploitative marriage, neither of which is simple or particularly appealing: waiver or conservatorship. The only fail-safe means of preventing an exploitative marriage to a caregiver is to petition the court pursuant to CPC Section 811 for a determination that the senior receiving the care lacks the capacity to enter into marriage, which is generally sought as part of a conservatorship petition.
In addition, there are several ways to attack an exploitative marriage to a senior with little or no capacity based on technicalities in the execution of the marriage. It may also be possible in certain circumstances to show that the marriage was entered into for an illegal purpose, which would make the marriage “void” from the beginning rather than “voidable” on the basis of fraud or undue influence.