Adult Children Sue Live In Caregiver and Get Crucified by the Court

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Elder Care Attorney

This case is heartbreaking. I know there are always two sides, but if the facts of this case are accurately reported, I agree with the outcome. Frank was 69 and Marilyn was 61 when they decided to move in together, in 1984. Frank’s wife had died the year before, while Marilyn’s husband had died many years earlier.

They lived happily together for 25 years, and shared almost everything. Frank and Marilyn had many get-togethers with their children and grandchildren. But they mostly kept their finances separate.

Early in 2008, Frank’s doctor diagnosed him with dementia. By the end of the year, Frank became incontinent and was unable to perform routine daily tasks. The story unfolds below.

Marilyn was taking care of Frank round-the-clock; dressing, bathing, and feeding him. Even after Frank became physically and verbally abusive, Marilyn continued as his sole caretaker, saying she didn’t mind because she “loved him and because he needed me, and I needed him even as he was. I was happy to be with him.”

After one year of caregiving, though, Marilyn had a stroke that left her with a mild speech impediment and difficulty swallowing. She and Frank’s children agreed that she couldn’t continue to care for Frank at home, so they selected a care facility for him that specialized in dementia patients.

Marilyn visited Frank every day, sitting with him in the common room. The facility director remembered how they were always holding each other “very close” and that Frank would “light up” when Marilyn was there.

Marilyn also took Frank out of the facility every day for several hours to visit the beach and other outdoor spots. Those who witnessed the couple saw how Frank “loved” the outdoor trips, and that “he beamed” and “was so appreciative. Sometimes Frank would not recognize Marilyn, but he would say: “I know her. I love her.”

Family relationships take a turn for the worse

Late in 2009, Frank’s daughter obtained letters from two doctors that certified Frank’s incapacity. The daughter then took over the management of Frank’s finances under the authority that Frank had given her in a Power of Attorney (POA), and as successor Trustee of a trust that Frank had set up.

The daughter discovered that Frank had transferred a $100,000 Schwab investment account to Marilyn. Marilyn also told the daughter how Frank had decided several years earlier to make Marilyn the beneficiary of a Bank CD account, and that she was using the interest to fund a joint bank account she had with Frank.

The daughter shut down the joint bank accounts and credit cards, and told the care facility to stop allowing Marilyn to visit her father.

After the facility director said she wouldn’t prevent Frank from visiting with Marilyn, the daughter moved her father out of the facility and tried to take care of him in her home. That lasted for five weeks, until the daughter couldn’t handle the care. Frank was then launched on a series of unsuccessful placements including involuntary transfer to a psychiatric hospital ward, and another Alzheimer’s facility.

The ultimate breakdown: adult children sue Marilyn for abuse

During the months when Frank was being moved around to different facilities, Marilyn tried to contact the daughter. Marilyn left notes at the daughter’s home telling her that she was “heartbroken;” “needed to see him;” “wanted to see him;” “was concerned for him;” was “desperate to see him;” and “was lost . . . without him.” Marilyn left clothing and mementos that she thought Frank might enjoy, but the daughter “put a block on her phone” and never responded.

Instead, the daughter and her siblings sued Marilyn, claiming undue influence, financial elder abuse, fraud and breach of fiduciary duty.

As the court case moved on, Frank died in a hospital. The daughter decided not to tell Marilyn about Frank’s funeral. Marilyn never knew there was a funeral for Frank until one of her neighbors told her, weeks later.

Hoping to fend off the fraud and abuse accusations against her, Marilyn’s defense attorneys filed a counterclaim in court against the siblings: intentional infliction of emotional distress.

Frank’s children had alleged Marilyn took $800,000 from their father, but by the end of the trial, their attorney admitted that Marilyn received only $100,000 of their father’s money. During his closing argument, the childrens’ counsel focused on the $100,000 that Frank did transfer from the Schwab account, arguing that Marilyn “used undue influence to obtain the $100,000 from Frank. That’s it. That’s the whole case.”

Therefore, he argued, the children couldn’t be liable for intentional infliction of emotional distress because they were “trying to protect Frank” and “concerned about what would happen if Marilyn . . . was allowed to take Frank out of the facility, potentially to a bank, or even see him and give him other documents to sign. So were they acting to protect Frank? Were they or were they working to protect themselves. . . .”

Surprise ending: jury tells Frank’s children to pay Marilyn

But the jury did go further. They answered “yes” to questions of whether the daughter’s behavior harmed Marilyn:

  • Was the daughter’s conduct a substantial factor in causing Marilyn’s severe emotional distress? Yes.
  • Has Marilyn proved by clear and convincing evidence that the daughter acted with malice, oppression, or fraud? Yes.

Marilyn had won her counter claim, and the jury rejected all the financial abuse claims brought by Frank’s children!

The jury awarded Marilyn damages totaling $323,700. In December 2014, a California Court of Appeal upheld the verdict for Marilyn. The Judges explained how Frank’s children:

“Knew that Marilyn, who was in her 80’s and had recently suffered a stroke, was emotionally dependent on her caretaking role for Frank and had been his sole caretaker for a lengthy period. They were also aware that Marilyn had no legal or practical ability to interfere with Frank’s finances because the daughter had taken over as successor trustee and all of the financial institutions had been notified of this fact. The evidence also shows that Marilyn communicated to the daughter that she had become emotionally devastated by her inability to see and care for Frank. Further, the conduct of the children was not a momentary lapse, and instead was the product of deliberation and discussion that continued over a nine-month period (from the time the Sisters refused to disclose Frank’s whereabouts through the time of Frank’s funeral).

The Appeals Court decided that the daughter’s role as trustee and attorney-in-fact did not give her the privilege to treat Marilyn as she had. The Court concluded that Marilyn’s “compelling testimony about her devastated condition in not being able to care for Frank in the last months of his life and her humiliation and pain in not being able to say goodbye at his funeral” justified the surprising verdict against the daughter.

To discuss your NJ elder care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at Please ask us about our video conferencing consultations if you are unable to come to our office.



My Ward Has Died! Now What? Understanding the Procedure a Guardian Must Follow When His/Her Ward Dies

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Guardianship Attorney

What if you’re the guardian of a family member who dies and now are executor of his or her estate. What must be done to discharge your legal duty as guardian? Seems like a simple enough question, doesn’t it? Well, it is and it isn’t.

You may be able to discharge your guardian’s bond simply by supplying the bonding company with the death certificate. However, it’s more likely they will require an order from the chancery court which appointed you as guardian formally discharging you from the bond. This process is not difficult, but again requires an order of the court.

To best protect yourself as guardian, here is what I suggest. File an updated accounting of the property under your control. It’s called a report of guardian of property through date of death. Submit this report to the Surrogate with a letter informing their office of the death of the ward (seems silly since probate was opened and you’re the executor, but that’s what you need to do), prepare a form of Order discharging yourself as guardian and releasing yourself from the bond, and provide a copy of the death certificate to them. I would notify all interested parties of your application to cover your bases.

To discuss your NJ guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at Please ask us about our video conferencing consultations if you are unable to come to our office.