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



Restoration of Capacity – Yes you can go back to court

Sometimes a guardianship must be put in place when a young person reaches adulthood and has severe disabilities that impede their capability to manage their financial or personal affairs. Sometimes a capable adult who never signed any Power of Attorney suffers a severe and traumatic brain injury, and a guardianship is urgently needed to ensure financial protection or arrange for necessary medical care.

In both of these situations, the person’s capability may improve over time. Young adults who have intellectual developmental disabilities will mature and will likely acquire new information and new skills as their supported exposure to the world expands. The person who suffered a traumatic brain injury (TBI) may begin to recover their ability to reason, to speak, to remember & apply information, and to make decisions.

The Guardian as well as the person under guardianship can petition the Court for a full or partial restoration of legal capacity and legal rights. The statute is at NJSA 3B:12-28. Cases for restoration of capacity have been brought in the NJ courts since as early as 1843. The process requires filing a Verified Complaint supported by current evidence and physicians’ evaluations which provide detail about the person’s capabilities. If the petition is appointed by the Guardian, the Court will generally appoint a lawyer to represent the person under guardianship, and if it’s filed by the person under guardianship, will appoint a guardian ad litem to report to the Court on whether restoration of capacity would be in the person’s best interests. Notice must be given to the next of kin.

Restoration is a joyous opportunity for a person with disabilities. Call us to discuss your particular situation …. 732-382-6070