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I have an Aunt who has a gambling problem. I want to know if there is a way to take control of her finances.

Brooklyn, NY |

She has had a few mini strokes but other than that is physically and mentally sound. She owns 50% of her home and her sister owns 50%. There is approx. 50% equity in the home. I have a sense of urgency as she has 10 years of a 20 year NY State lottery annuity left. She is looking to assign it to get the cash to pay the mortgage. It is a 125k annual annuity. She would probably settle for 60%-70% of the annuities value, pay off the mortgage and use the rest for gambling. She cashed in 5 years w/out me knowing and has nothing significant to show for it. That annuity was going to ensure their ability to stay in their home for the next 10 years.

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Attorney answers 4


This is a difficult situation. NYS law allows for a petition to be made to the court to appoint an "Article 81 Guardian" for an adult who is alleged to be incapacitated, either mentally, physically, or both and to a wide range of degree. You would have to consult with an attorney experienced in handling these guardianships to see if there is a chance it might apply to your Aunt's condition. Elder Law attorneys are often well versed in these matters.

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I certainly sounds like this is a challenging situation for you. You can seek a declaration that your aunt lacks capacity and an order establishing guardianship. You should consult with local NY attorney for specific advice and an opinion as to whether or not your aunt lacks sufficient capacity to make her own financial decisions.

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I agree with both of my colleagues. Sadly, I am not sure that a court would determine your aunt to be incapacitated, under the circumstances. You often cannot save people from themselves. Her penchant for making bad choices does not render her incompetent.

What you might do instead is to try to counsel your aunt to meet with a financial advisor to determine how best to allocate her resources. If this is set up properly, she might have plenty of money to handle not only her debts, but also have plenty left over to give her some "mad money" to gamble with. If she can be persuaded of the sense and practicality of this, then that may solve your problem. I am concerned that taking this to court is not only not going to result in your success, but it could also irreparably damage your relationship with your aunt.

As the others have stated, this is truly a difficult and challenging situation. Your aunt is fortunate that you are looking out for her interests!

James Frederick

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You should find an elder law attorney familiar with guardianship/conservatorship. You should also consider having her sister involved, as this potentially effects her interest in the estate.

The author is a Maryland attorney; however no answer given on Avvo is intended as legal advice or intended to create an attorney-client relationship. Dan's expertise lies in the electronic entertainment (video game) industry, as well as complex internet law issues, electronic free speech, entertainment law, copyright and trademark law, and computer fraud. He primarily represents game developers and founders of emergent internet technologies.

Daniel Gary Rosenthal

Daniel Gary Rosenthal


One other thing -- keep in mind that if you are successful in getting your aunt declared incompetent, that will affect the validity of her will; you should ask the lawyer about the estate issues involved, as it may be more important to save her from squandering the money now, but you need to be aware of what kind of drama that will bring when she passes and her will goes to probate.