Decision-making, fraud, and undue influence—illustrated through the lens of the Brooke Astor story

Remarks prepared for Our Aging Brains: Decision-making, Fraud, and Undue Influence, part of the Project on Law and Applied Neuroscience, a collaboration between the Center for Law, Brain & Behavior at Massachusetts General Hospital and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School; April 27, 2018.

“Elder abuse is not substantiated”

The meaning of elder abuse remains misunderstood, even by professionals.

I know—from hard-learned experience—when I, and many others, worked to save my grandmother from abuse by my father.

In a December 2006 court decision, my grandmother’s guardianship judge authorized reimbursement of my legal fees for bringing a guardianship petition for my grandmother, stating, “Although this matter voluntarily settled before the hearing, I find the petitioner Philip Marshall was the prevailing party…”

But the judge also decided to award my father a portion of his legal fees, writing, “I make this ruling based on the conclusion of the court evaluator that the allegations in the petition regarding Mrs. Astor’s medical and dental care, and the other allegations of intentional elder abuse by the Marshalls, were not substantiated.” [italics added]

Decision—In the Matter of the Application of Philip Marshall for the appointment of a Guardian for the Person and Property for Brooke Astor, an Alleged Incapacitated Person. Judge John A. Stackhouse, Supreme Court of the State of New York. December 4, 2006

This decision probably has much to do with the misunderstanding of elder abuse, elder financial exploitation, testamentary capacity, undue influence, and many other critical legal concerns addressed here, today, and for millions of seniors and their circles of support (personal and professional) all along the way.

“Astor son is cleared,” headlined The New York Times, which quoted my father’s lawyer saying, “This is a case that was given birth from allegations that were absolutely fictitious regarding Mr. Marshall’s care of his mother.’” (2006)

On the dark December day of this decision, our Pyrrhic victory found us losing the greater war against elder abuse.

Was my grandmother’s case to be elder justice’s Plessey v Ferguson?

Were we to repurpose my family’s ‘dirty laundry’ as surrender flags, giving up on the greater cause in to which we had been so thrust?

No.

This one clause catapulted our campaign from case to cause.

And, just as my father declared that he had been vindicated, the Manhattan District Attorney’s Elder Abuse Unit expanded its own investigation, empanelled a grand jury, and issued subpoenas.

In November 2007, my father and a lawyer were indicted.

In April 2009, a criminal trial began.

Executing codicils while “delusional”

Substantial, serial changes to my grandmother’s will began in 2002—and escalated.

In my grandmother’s case three lawyers combined to create a ‘perfect storm’ coming in to her frail life in the winter of ’03-’04 to execute three codicils that redistributed almost $100 million of her bequests to charities, directing them to my father’s control.

First, my grandmother’s long-standing lawyer and good “friend” who was head of trusts and estates for an internationally recognized firm.

This lawyer, who was a co-trustee of the Vincent Astor Trust, was planning to be attorney and co-executor of my grandmother’s estate.

This lawyer, as his last of several acts just before he was fired, took the highly unusual step of preparing a self-described “First and Final Codicil.” (For discussion, see an interview conducted by Lori A. Stiegel, Senior Attorney, ABA Commission on Law and Aging, with Expert Witness Alex Forger 2011)

This lawyer betrayed my grandmother’s trust and compromised her testamentary wishes.

First and Final Codicil prepared by Henry Christiansen, III, Esq, at the time senior partner in Sullivan & Cromwell’s Estates and Personal Clients Group, which had represented Mrs. Astor for over fifty years. Executed, December 18, 2003. In his interview conducted by Lori Stiegel, Alex Foger notes, “As to labeling the codicil as ‘First and Final,’ Christensen testified that he could not recall why the ‘Final’ was included. He stated that he had never used that term before. It was speculated that Christensen was either putting Marshall on notice that he would not ask Mrs. Astor to execute any more testamentary instruments or indicating that her capacity to execute any additional instruments was doubtful. Supporting that speculation was the statement made by Christensen—after the execution of the second codicil prepared by Whitaker— that he doubted Mrs. Astor was capable of making a major change in her estate plan.” (2011)

Another lawyer, who my grandmother had never met before, but presumed to act in her best interest, executed a second codicil, changed her executors, and executed a new power of attorney. This lawyer covered up his tracks to, at, and from, the signing of the codicil. Multiple versions of his memo memorializing the event were crafted to suggest that my grandmother had testamentary capacity. (memo drafts)

Mrs. Astor’s signature on the Durable General Power of Attorney, prepared by G. Warren Whitaker, III, Esq. of Day, Berry & Howard, executed by Brooke Astor, January 27, 2004.
Detail of letter from Brooke Astor to her son, Anthony (Tony) Marshall, January 4, 2007. Then, in a document prepared by G. Warren Witaker, Esq, and executed on January 22, 2004, Mr. Marshall appointed Charlene Tyler Marshall (his wife) and Francis X. Morrissey, Jr., Esq. as co-executors along with himself.

And last, a lawyer, Francis Morrissey. In the 1990s he had been suspended from practicing law.

This lawyer, who had known my father’s third wife for years, insinuated himself in to my grandmother’s life and orchestrated much of this from the sidelines — while waiting for the residual in the form of fees as newly appointed co-executor and estate attorney.

This lawyer’s suspect forgery of my grandmother’s signature on a third codicil later spurred the Manhattan District Attorney, as it started its own investigation.

As reported by The New York Times (2006), ”The expert, Gus R. Lesnevich, a forensic handwriting examiner who was hired by Mrs. Astor’s court-appointed lawyer, said in his report that Mrs. Astor ‘could not have written the questioned “Brooke Russell Astor” signature dated March 3, 2004, due to the deterioration of her ability to write her name.’” Francis X. Morrissey, Jr. was charged (The New York Times 2007), convicted (Findlaw 2010), and sentenced on five counts, including forgery. He was later disbarred (NY Post 2010).
Letter dated March 4, 2004, from Francis X. Morrisey, Jr. to Anthony Marshall, subject: Terry (Henry Christiansen, III, Esq, senior partner in Sullivan & Cromwell’s Estates and Personal Clients Group), who had executed the “First and Final Codicil” (December 18. 2003) and had been removed as co-executor of Mrs. Astor’s estate (January 22, 2004) and as Mrs. Astor’s lawyer. “Charlene” refers to Mr. Marshall’s third wife.

While my grandmother’s will to live remained strong, her (testamentary) will, to give, had been completely compromised — four years after my father, claimed she was “delusional” in a seven-page letter to Dr. Howard Fillit, a geriatric neurologist.

“I feel I’m losing my mind.” — Letter to Dr. Howard Fillet [sic, Fillit], M.D., from Anthony Marshall on “more detailed information regarding my mother’s health” at the request of Dr. Fillit. December 26, 2000.
“…what is my income?…Is that for a month or year?” — Letter to Dr. Howard Fillet [sic, Fillit], M.D., from Anthony Marshall on “more detailed information regarding my mother’s health” at the request of Dr. Fillit. December 26, 2000.
“Are you my only child?” — Letter to Dr. Howard Fillet [sic, Fillit], M.D., from Anthony Marshall on “more detailed information regarding my mother’s health” at the request of Dr. Fillit. December 26, 2000.

After the execution of these codicils, my grandmother was fearful of “men in suits.” At night, she asked nurses to look under her bed for the, “man who wants to kill me.”

Following diagnosis by Dr. Fillit, my father told her country butler to keep the news to himself. Upon request my father have him a short list of the signs of Alzheimer’s disease—and instructed him to call her lawyer if they had any questions. Staff received no professional support.

My grandmother’s wellbeing was direct casualty of an effort to exploit her when, and because, she was in the throes of Alzheimer’s disease.

“Brooke Astor was not all there, ex-butler Chris Ely says in trial of Astor’s son Anthony Marshall.” Joanna Molloy, New York Daily News, June 9, 2009. Sketch: Jane Rosenberg.

Undue influence

As perpetrators know, psychological manipulation by undue influence is so effective in commanding their power while further debilitating seniors who have cognitive impairment and may lack testamentary capacity. Undue influence can compromise seniors’ wellbeing—and their wishes.

In horror, I realized this was happening to my grandmother when she was most vulnerable.

After her hundredth birthday, I grew increasingly concerned for my grandmother. I began speaking with her supportive staff and caregivers.

Flags, Fifth Avenue (1917), Childe Hassam, in Mrs. Astor’s library at 778 Park Avenue, New York. Photograph: Philip C. Marshall.

A transaction had raised red flags. I heard that while my father was cutting back on my grandmother’s expenses, he had sold her favorite painting—Flags, Fifth Avenue, by Childe Hassam— that she had bequeathed to the Metropolitan Museum of Art. (New York Times, 2006)

The sale realized $10 million, two of which my father kept as a “commission.”

On hearing of the sale, my grandmother, who had been led to believe she was running out of money, asked, “Now, can I buy dresses?”

My grandmother went from the limelight, center stage as lead actor in her own life, to being ‘gaslighted’ by her own son, who psychologically broke her down into believing she was going broke.

My grandmother knew she was subject to undue influence, evidenced by testimony during my father’s trial.

As reported by The New York Times, according to an attending nurse, Ms. Noble, Mrs. Astor said, “‘I give up. They get all that they want. I’m so gaga, what can I do?’”

During the signing of a codicil, my grandmother attempted to defend herself; again, quoting the Times, “‘I won’t be pushed into any business, do you hear me?’ Ms. Noble said that Mrs. Astor told her son.” and “…when the Marshalls visited the apartment, Ms. Noble said that Mrs. Astor told her: ‘What do they want? Tell them I will pay them to leave.’”

Undue influence is elusive — from isolated seniors at home, to professionals’ offices, to our court houses, and for responders along the way. Even its definition is elusive.

But advances are being made. For example, in 2014 California updated its laws and its 1872 definition of ‘undue influence’ so judges, for the first time, have specific means to evaluate its existence in a given case.

A new statutory legal definition, California Probate Code and Welfare and Institutions Code, and a pilot California Undue Influence Screening Tool (CUIST) to help adult protective services personnel are all aimed to maximize use and effectiveness in the field—and, hopefully, in court.(Marshall and Quinn 2017)

We advance from case to cause, when we go from case to case laws.

In the Redstone/Viacom conflict in 2016, it is unfortunate that California Judge David J. Cowan, who was deciding one of the related cases, did not rule on Sumner Redstone’s competency—or undue influence. (Hollywood Reporter 2016)

When the conflict came to Massachusetts before Judge George F. Phelan of Norfolk County Probate Court, as noted in The New York Times, “Multiple times, Judge Phelan asked whether a finding of undue influence should invalidate the dismissals from the trust, and cited a section of Massachusetts trust code on the matter.” (2016) Shortly after, the case was settled out of court.

Isolation and cognitive impairment

My grandmother was cognitively impaired and isolated, yet her case is far from isolated: millions of victims suffer similar injury every day. (Pillemer et al 2015)

While seniors may be isolated and cognitively impaired; each of us (personally and professionally) may be, too.

Isolation

Professionals are isolated…in disciplinary silos — even in their own industry. This hampers collection and sharing of information to detect, respond to, and prevent theft; and in taking a proactive, strengths-based approach to aging.

Perpetrators know this, to their advantage.

We need consistent terminology and much more multidisciplinary work to aid in research, response, performance measurement, and asset allocation—especially toward prevention.

We need data sharing within and across disciplines.

This urgency and opportunity is underscored by findings of last November’s conference at the “Philly Fed,” co-sponsored by UPenn, on Aging, Cognition and Financial Health and its proposal to have the healthcare and financial industries share data, cradled in a trust framework with privacy concerns in mind. (Aging, Cognition and Financial Health: Building a Robust System for Older Americans, hosted by the Consumer Finance Institute of the Federal Reserve Bank of Philadelphia and co-sponsored by the Penn Memory Centerand Healthy Brain Research Network Centerat the University of Pennsylvania.)

Professionals also isolate themselves from themselves — from their personal experience.

Colleagues associated with The Gerontological Society of America examined both facets of their lives last year in a special issue, “Aging: It’s Personal,” different from anything The Gerontologist has ever published. Rachel Pruchno, issue editor, notes, “Although science tells us about average experiences, these reflections show that real life is sometimes much more complex and much messier.” (2017, 4)

This why I am so grateful for our conference leaders today who, from the outset, explained to me how their personal circumstances have informed and compelled their work — and their appreciation of community-wide conversations.

For, our silence protects perpetrators, not their victims.

This why public engagement — here, this morning — is so valued.

Our shared stories will help translational research come full circle, to embrace all stakeholders in protecting our perimeter against abuse when we consider communities countrywide as living laboratories.

Cognitive impairment

Seniors may be cognitively impaired. We all may be ‘cognitively impaired,’ and missing pieces, when it comes to elder justice.

Ageism is the fundamental impediment to elder justice, due to its ‘fear factor’— as we are scared to death…of death , and any of its associations. (Becker 1973, Solomon) This impairs seniors and our future self, every day.

We are only more scared by the existential trauma of dementia, including its stigma — with the (scarlet) “Big-A” at the forefront.

At a reception in her honor, Dr. Jimmie Holland (left), Wayne E. Chapman Chair in Psychiatric Oncology, Memorial Sloan Kettering Cancer Center, being introduced by Dr. Jason Karlawish, Professor of Medicine, Medical Ethics and Health Policy, and Neurology at the University of Pennsylvania at Ageing and Cognition: Maintaining Economic Security in Later Life, co-hosted by the University of Pennsylvania Healthy Brain Research Center and the World Economic Forum Global Agenda Council on Aging (resulting publication, Shaping the Global Agenda on Ageing Meeting the Needs of Cognitive Decline 2016), Philadelphia. May 9, 2016. The late Jimmie Holland, founder of the field of psycho-oncology, conducted important research about how battles with cancer affect the mind and how to help patients and survivors. In her later years, she turned to aging, co-authoring Lighter as We Go: Virtues, Character Strengths, and Aging in 2014.

Perpetrators know this, to their advantage as they weaponize dementia (alleged or actual) and legal instruments — POAs and guardianship, included.

Tribulation to trial

We advanced from tribulation to trail. From the tribulation of hearing the allegations in my petition for guardianship were unsubstantiated, to a criminal trial that proved otherwise.

Yet, it took a six-month trial—which included over seventy witnesses for the People and none for the defense—to prove, beyond a reasonable doubt, that my grandmother was cognitively impaired, lacked testamentary capacity, was subject to a scheme to defraud, and was a victim of abuse.

My father was convicted on 14 counts. All but one were upheld on appeal.

Before we acted, my grandmother was poly-victimized and re-victimized.

However, she was not victimized after intervention— only because she was not cognizant…of the guardianship judge’s finding that, “elder abuse was not substantiated,” or that, during the criminal trial, it was claimed by the defense she had a “lucid moment” while signing legal documents.

In Surrogates, whose proceedings had been put on hold, a settlement was reached that provided for charities (especially those with an emphasis on education) largely as my grandmother wished.

Here, if her wishes had not been met, New York teachers would have received nothing more than a lesson plan in how elder abuse—and a legal system inadequately informed by neuroscience, psychology, and psychiatry—can be used to exploit.

My grandmother’s case gained national attention. Most cases are not even known. Only one in 24 cases of elder abuse are reported—and only one in 44 cases of elder financial exploitation, the most prevalent form of abuse. (Under the Radar 2011)

Perpetrators frequently take advantage of victim vulnerability, undue influence, and legal instruments, which they use as a weapon and a shield—to steal.

If caught, they know perpetrator accountability and victim recovery can be compromised by our inadequate understanding of neuroscience, psychology, psychiatry ,and legal doctrine of financial decision-making in older adults.

Today takes us one step closer to society’s proactive prevention of, and response to, abuse—and to making elder justice as American as grandmother and AAPL pie.

— Philip C. Marshall, Founder, Beyond Brooke

Joining colleagues in welcoming conference participants: Francis X. Shen, JD, PhD, Senior Fellow in Law and Applied Neuroscience, the Petrie-Flom Center in Health Law Policy, Biotechnology, and Bioethics, Harvard Law School and the Center for Law, Brain & Behavior at Massachusetts General Hospital and Associate Professor of Law and McKnight Land-Grant Professor, University of Minnesota Law School