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

 

 

Person under Guardianship still has the right to vote

When a Court enters an order in a guardianship action that finds a person to be “incapacitated,” the Court is required in New Jersey to consider the functional areas in which the person needs or does not need a surrogate decision-maker, and must fashion the least restrictive arrangement that is consistent with the individual’s best interests. The Court can structure the guardianship as a plenary guardianship or a limited guardianship. The functional areas include managing one’s own medical, financial, residential and educational decisions. In a plenary guardianship, the Guardian is appointed to make all decisions (in a manner consistent with the person’s best interests or specific expressed preferences if known). There are two fundamental rights that are not automatically removed by guardianship, but should be preserved to the person in the Judgment to avoid problems: the right to vote, and the right to marry.

The NJ Constitution in Art 2, § 1, ¶ 6, was amended in 2007 and includes the following language: “No person shall have the right of suffrage who has been  adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting.”  This means that to remove the right of suffrage from a person who is determined to be incapacitated, the Court must conduct an inquiry specifically into the person’s ability to “understand the act of voting,”  and must place that specific finding in the Judgment.

This may not be an applicable inquiry in many cases in which the extent of the person’s cognitive impairment is patent and extreme. But there could very well be situations especially with limited guardianship in which the person has long-held or deep-seated beliefs, has regularly voted, and is able to explain the “act of voting.”  Laws do vary state by state. Given how precious the right of suffrage is, advocates for the alleged incapacitated person may well want to put this issue on the table when the case is being heard by the Judge.

Call for legal advice on guardianship issues ……. 732-382-6070