A happy day in Guardianship Court: Restoration

Today I had the great fortune to participate in a case in which a person who has been under guardianship for six years had their capacity restored in full.  This kind of situation doesn’t often happen, but it’s really fabulous.

This case started in 2010 when the parent and sibling came to me in an emergency to report that their loved one who I’ll call “X” had suffered a burst aneurysm and a stroke, and was in a coma in the hospital. The hospital advised that they seek guardianship, as there was no power of attorney or health care proxy in place. We filed the necessary papers, and the parent was appointed Guardian. The “ward” — a former executive with huge responsibilities at a major New Jersey corporation —  required extensive hospitalization, but eventually arose from the coma and was released. “X” had a very slow improvement in high level intellectual ability. Also, “X” had various lower body physical handicaps including partial paralysis and required a lot of hands-on assistance.

The family was utterly devoted, and with each year, “X” got stronger and more of “X’s” intellectual processing returned. At one point, “X” asked us to go back to Court, as “X” wanted to revoke “X’s” prior Will and make a new plan. That was accomplished, with the help of the “ward’s” court-appointed attorney. The Guardian and family continued to assist the “ward” with challenging exercises and tasks to help “bring the brain back.”

Finally, the Guardian contacted me and basically said “we think that “X” is ready to regain control of all decisions about their life. “X” has physical handicaps, but “X” can handle those with amazing specialized equipment which “X” knows how to use, and “X” will ask for help when necessary.” So we filed the necessary Verified Complaint with supportive medical reports, and today, following a hearing, the Judge granted “X” restoration of full capacity.

Pursuant to N.J.S.A. 3B:12-57.g.,  Guardians are required to encourage the ward to participate in decision-making “in order to encourage the ward to act on his/her own behalf whenever s/he is able to do so, and to develop or regain higher capacity to make decisions in those areas in which s/he is in need of guardianship services, to the maximum extent possible.” The incapacitated person has the right to petition the court for modification or termination of the guardianship, R. 4:86-7(a)(6),  and the Guardians have the duty under N.J.S.A. 3B:12-57f(10) to institute such legal actions as the “ward” could institute. How is that done? By filing a formal Verified Complaint and order to Show Cause with the court who has jurisdiction over the guardianship, supported by medical proofs and other relevant evidence.

Needless to say, “X” was grinning from ear to ear to receive the Judgment of restoration. So was the Judge … they rarely have the opportunity to see such a fantastic recovery by a person under guardianship.

Call us for advice on guardianship, conservatorship, power of attorney and elder law …. 732-382-6070



Guardian needs a Court Order to move incapacitated person out of State

Once a Court has ruled that a person is “incapacitated” and has appointed a Guardian of his person and property, the Guardian has many responsibilities and also, there are  certain restrictions on what a Guardian may do. The details are spelled out in New Jersey’s laws and court rules. Also, each County may have certain specific procedures of its own. One of these limitations is that the Courts of New Jersey have jurisdiction over the person of the individual who is under a guardianship, and a guardian must seek court permission to move the “ward” out of state.

A guardianship may last for many years, and there are certainly circumstances in which it is in the person’s best interest to move out of state. One example would be, if the Guardian needs to relocate for a new job or family circumstance. If the Guardian already resides out of state, s/he may find that the ward is running out of funds and could receive equivalent local care at much less expenses. There might be a specialized program out of state that is ideal for the individual, with a plan for the individual to become a resident of that state.

The Guardian typically would need to file a Verified Complaint with the same Court that entered the Guardianship judgment, seeking authorization to transfer their ward out of state. Very likely, the Court will want to see an updated report of the income and assets; a proposed care plan; an opinion from a physician or other involved professional that the transfer is medically safe and will promote the ward’s best interests; information from the receiving site that confirms the availability of a placement. The Court may appoint an attorney or a guardian ad litem for the incapacitated person.  If the ward has family members who remain in New Jersey and who have an ongoing involvement with the ward, the Guardian may want to consider obtaining consents from those people as well. The Guardian needs to put together as strong a case as possible to increase the likelihood of a favorable ruling. Clearly, this process won’t happen overnight, and the matter could become contested.

The Guardian is accountable to the Court, as the Court has continuing jurisdiction over the person residing in New Jersey who is under guardianship. As in all things, careful planning can prevent a crisis. If a guardian needs to relocate, they should start the planning enough in advance to facilitate a smooth transition to the receiving state for the senior adult or other person under guardianship. Once there, new proceedings will be needed to establish the guardianship in the receiving state … there is a uniform Act [UAGPPJA], but  each state has its own procedures for that.

Call for advice and representation on guardianship matters … 732-382-6070