Marriage of Couple in Their Mid-90s Is Challenged by Wife's Co-Guardian

Many people are aware that, in many states, a guardian can file for dissolution of a marriage of a ward from the spouse's ward.  See, e.g., Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage.  It seems that the guardian's authority includes contesting a marriage each persona voluntarily entered into.  Edith Hill and Eddie Harrison married after being companions for 10 years, but the marriage is being questioned because Hill had been declared incompetent several years ago. 

Hill, who is 96, and Harrison, who is 95, met in line for lottery tickets more than 10 years ago and married earlier this year, according to the Associated Press. The marriage has been challenged, however, because Hill is under guardianship. Hill's daughter, Rebecca Wright, serves as Hill's co-guardian along with another daughter, Patricia Barber. Wright supports the marriage and supposedly allowed it to take place without Barber's knowledge.

After ruling that the marriage may not be legally binding, a Virginia judge ordered an investigation. The judge removed Wright and Barber as guardians and appointed an independent lawyer to determine whether the marriage is in Hill's best interest. Barber is concerned that the marriage may affect the distribution of Hill's estate, which totals $475,000. One possible solution being discussed is a postnuptial agreement preventing Harrison from inheriting Hill's estate.

For more information about the couple’s possibly invalid marriage, click here. 

Caregiver Weds Man Then Depletes His Estate Leaving His Family Nothing

Proper planning for single seniors includes protecting the estate from control by third parties. A recent case illustrates how difficult it can be to protect a loved one from finacial abuse. Frank Calcaterra was in his 80s in 2008 when his family hired a home care company to help the former metro Detroit funeral home owner look after his ailing wife Jonnie, who had dementia.  Kentucky-based ResCare sent Tangie Coleman, who, at the time, had a warrant out for her arrest, records show.  It was later discovered that she lied on her application with ResCare.

Jonnie’s jewelry soon began to disappear.  When Jonnie Calcaterra died in a nursing home in January 2012, Coleman and her mother were living in Frank Calcaterra’s lakefront home in Waterford and he was sleeping in the basement.

A few months later, Coleman married Calcaterra in Ohio, without his family’s knowledge. Frank Calcaterra’s sizable fortune soon disappeared.  Estimates from court filings put the loss at anywhere from $500,000 to more than $1.5 million.  On Oct. 25, 2012, when Coleman, who was 35, and Frank Calcaterra, who was 86, were married in Ohio, at least two complaints alleging financial exploitation had already been filed against Coleman with the Michigan Department of Human Services’ division of Adult Protective Services.

When Frank Calcaterra’s daughters removed him from his home, less than a year later, he was 10 pounds lighter and destitute. He did not have a single bank account maintaining a positive bank balance or a valid credit card. Coleman was driving him to a check cashing storefront with his monthly Social Security check.

The case highlights what experts say is a significant and growing problem in the U.S. — financial exploitation of elderly people by caregivers. Many cases go unreported and accurate estimates are hard to pin down, but studies suggest there are at least tens of thousands of such cases each year.

In May of this year, a judge appointed a conservator for Calcaterra, citing fraud and financial exploitation, which Coleman denies.  Calcaterra’s court-appointed conservator, is seeking to annul the marriage, alleging it was a fraud Coleman perpetrated “solely for her financial gain.”

Calcaterra’s daughters are looking for answers and accountability, too. They’re unhappy the state failed to act and that it has been difficult to get police agencies to launch criminal investigations, with some officials saying the 2012 marriage mades the case a civil matter.

“Our concern is that no other family ever go through this,” said Calcaterra’s daughter Charlotte Knutson, who lives in Minnesota told a reporter for the Detroit Free Press.

Sgt. Brent Ross of Waterford Police recently closed a criminal investigation.  “There is still no evidence that Tangie ever forged a specific check although it may be inferred,” Ross reportedly explained to the family throught their attorney via email. “Perhaps the checks were forged, but they could have been forged by anyone.”

Coleman, who declined to discuss her history with Calcaterra during a brief encounter with a Free Press reporter, denied wrongdoing in an answer she filed to the annulment/divorce petition.  She claims Calcaterra gave her permission to sign his name to checks and his daughters are biased against her because she is black.  “Frank always gave me stacks of money ... and always promised to take care of me,” said Coleman, whose Facebook page featured photos of her fanning a stack of $100 bills.

“They kidnapped my husband,” Coleman said in a court filing. “I want him back.”

Records show Coleman was married when she was hired to help Calcaterra, but got divorced on Oct. 11, 2012 — two weeks before her marriage to Calcaterra. Of the many checks drawn on Calcaterra’s bank account in 2011, more than 20 totaling more than $10,000 were payable to Coleman’s husband at the time, for services such as painting, lawn care and moving.

Calcaterra, who spoke to a Free Press reporter with his daughters present, said Coleman told him she needed to marry him in order to receive a significant legal settlement resulting from a lawsuit she brought against an Oakland County police department for an alleged police assault against her. Calcaterra had earlier given her money to hire a lawyer.

“They went to court and got a settlement,” Calcaterra said. But Coleman told him officials told her she is a spendthrift, and in order to be paid the settlement she first had to get married so she would have someone to watch over how she handled the money.  “That’s why we got married,” Calcaterra said. “I don’t think there ever was a police report of this ever happening.”

There also is no record of any such lawsuit.

As might be expected, the family has filed a lawsuit against ResCare.

Text messages and handwritten notes exchanged between Calcaterra and Coleman show he was smitten with her. And Calcaterra pushed back hard when his daughters tried to convince him he was being used.

To read the full USA Today article, which includes practical precautions family members can implement, go here.

To read the Detroit Free Press article, go here.

Illinois Permits Guardian Authority to Petition for Termination of a Ward's Marriage

The Illinois Supreme Court overturned the 26-year-old opinion In re Marriage of Drews, 503 N.E.2d 339 (1986), ruling that a guardian has the legal authority to petition for dissolution of a ward's marriage, and may take appropriate legal action to accomplish that end. Karbin v. Karbin, 2012 IL 12815 (Ill. 2012). 

In 1986, the Supreme Court had held that a guardian did not have standing to initiate a dissolution of marriage action on behalf of a ward. The court found that the Probate Act, which allows a guardian of the estate to appear and represent a ward in legal proceedings, was limited to matters directly involving the ward’s estate and that there was no comparable language which governs rights and responsibilities over the ward’s person. In making this decision, the court said that it was following a strong majority rule across the country. In re Marriage of Drews, 503 N.E.2d 339, 340 (1986).

The decision was short and concise. Justice Seymour Simon dissented, arguing that the court’s holding was too restrictive. “If the initiation of a legal proceeding though personal can be shown to be beneficial to the maintenance and welfare of the ward, the court ought to allow it.” In re Marriage of Drews, 503 N.E.2d 339 342 (1986).

Karbin v. Karbin involved a contentious divorce case that, while initiated by the competent husband, was being pursued by the incompetent wife’s guardian after the husband voluntarily dismissed his petition. The husband moved to dismiss the counterpetition filed by the guardian, citing Drews. The trial court dismissed the case and the Appellate Court affirmed. As its first order of business, the court justified its decision to overturn Drews, finding that the court had shifted away from Drews. Karbin v. Karbin, 2012 IL 12815 at 6 (Ill. 2012).

In fact, the limitation on the guardian’s authority ordered in Drews was abandoned only three years later in Estate of Longeway, when the Supreme Court held that a guardian has implied authority to act in the ward’s best interests regarding the use of life-sustaining measures. Estate of Longeway, 549 N.E.2d 292 (1989). Later that year, the Supreme Court reaffirmed that expansion of authority by holding that a guardian may decide to remove life support. Estate of Greenspan, 558 N.E.2d 1194 (1980).

After justifying its decision to overturn Drews, the Karbin Court pointed out that the divorce in Drews had been filed prior to the adoption of no-fault grounds in Illinois. At that time, divorce involved one guilty party and one injured party and it was the sole choice of the injured party to severe the marriage. This was considered a uniquely personal decision to which no one else was privy. Once the concept of injury was removed from divorce, the decision to end a marriage would be no more personal than the decision to end life support, have an abortion or undergo involuntary sterilization. In fact, the court noted, divorce was not as final or permanent as those decisions were. Karbin v. Karbin, 2012 IL 12815 at 11 (Ill. 2012).

There was simply no reason why a guardian should not be allowed to make the personal decision to file for divorce using the substituted judgment standard permitted by the Probate Act. “As is apparent, the traditional rule espoused in Drews is no longer consistent with current Illinois policy on divorce as reflected in the Illinois Marriage and Dissolution of Marriage Act.” Karbin v. Karbin, 2012 IL 12815 at 11 (Ill. 2012).

Finally, this court found that continued application of the holding in Drews could put an incompetent spouse at the mercy of an ill-intentioned competent spouse. “Because under the Probate Act the guardian must always act in the best interests of the ward, when a guardian decides that those best interests require that the marriage be dissolved, the guardian must have the power to take appropriate legal action to accomplish that end.” Karbin v. Karbin, 2012 IL 12815 at 12 (Ill. 2012).

The Court summed up its discussion succinctly: “[t]his ensures that the most vulnerable members of our society are afforded fundamental fairness, equal protection of the laws and equal access to the courts. Therefore, In re Marriage of Drews is hereby overruled.” Karbin v. Karbin, 2012 IL 12815 at 14 (Ill. 2012).

Upon remand, the court directed the Circuit Court to hold a hearing in order to determine if divorce is in the ward’s best interests, clarifying that the guardian always acts as the hand of the court and subject to the court’s direction. In order to prevent a guardian from pursing a divorce for his or her own purposes, the guardian must satisfy a clear and convincing burden of proof that the divorce is in the ward’s best interests. This higher burden is in accordance with the standard applied to other highly personal issues. Karbin v. Karbin, 2012 IL 12815 at 15 (Ill. 2012).

While most probate and domestic relations practitioners agree that the decision to overturn Drews was long overdue, on the grounds that a guardian who has standing to petition the court to withdraw life support from a ward, should likewise have authority to dissolve a marriage, both decisions being personal to the ward, others are more apprehensive because a guardian can remove an advocate spouse when the spouse is properly recalcitrant or vocally objects to decisions of an abusive guardian.  

Those supporting a guardian's authority rely upon the Probate Court to decide whether pursuing a divorce is clearly and convincingly in the ward’s best interests.