Today, I read an interesting article in the Asbury Park Press, No Way Out (Asbury Park Press, Section A1, Sunday, September 1, 2013).  The article was about a gentleman by the name of Ken Schmidt who fell, bumped his head, was rendered incapacitated for several weeks (or months … the article didn’t specify), and had a guardian appointed for him.  His guardian was the Office of the Public Guardian for the Elderly, which is a state agency that sometimes serves as a person’s guardian.

The basic tenor of the article was that Mr. Schmidt’s civil rights were taken away from him and now, after he regained his mental capacity, he couldn’t get those rights back.  According to the article, he was being forced to living in an assisted living residence, as opposed to his home, and couldn’t undo the guardianship that had been foisted upon him.

The author of the article interviewed the surrogate of Ocean County.  The ocean county surrogate indicated that Mr. Schmidt would need affidavits from two licensed physicians attesting to the fact that he had regained his mental capacity before the guardianship could be undone and Mr. Schmidt’s civil rights could be returned to him.  The Surrogate also indicated that his office only handles two or three “return to capacity” actions a year, making such actions rare.

The problem for Mr. Schmidt was, his cash assets had all been spent on the assisted living residence and having been declared incapacitated, he did not have access to an attorney or to physicians who could attest to his regained capacity.

Personally, I have several problems with the tenor of this article.  A guardianship is a court procedure through which one person, the guardian, has another person, the ward, declared incapacitated as the result of physical or mental infirmity.  The idea is that the ward, because of physical or mental incapacity (or a combination of the two) can no longer handle his affairs.

From what I could gather, Mr. Schmidt was a single individual who never executed a financial power of attorney or living will.  In other words, he never appointed another individual to make decisions for him if he were ever unable to make those decisions for himself.  After he bumped his head, for at least several weeks, he was unable to make decisions for himself.

During those weeks (or perhaps months), I am sure that many decisions needed to be made for him—health decisions, residential decisions, financial decisions.  Since Mr. Schmidt was incapacitated by his own admission during this time period, the hospital couldn’t simply make medical decisions for him without his input and consent and the hospital couldn’t discharge him to a facility, such as a nursing home for rehabilitation.  Moreover, he couldn’t simply go home, because people who are incapacitated typically don’t take good care of themselves.  The hospital would be liable if it didn’t provide for Mr. Schmidt’s proper care and discharge.

Now, Mr. Schmidt has regained his capacity.  So, it is fit and proper that his guardianship should be dissolved and his rights should be returned to him.  I disagree with the Ocean County surrogate’s assessment that Mr. Schmidt must now obtain the affidavits of two physicians (whom Mr. Schmidt cannot afford to retain) to attest to his regained capacity.

There is a court rule and a New Jersey statute that addresses the return to capacity of a person who has been adjudicated as being mentally incapacitated.  Neither the court rule nor the statute require the ward to obtain two physician’s affidavits.  The two-physician-affidavit standard is the standard to declare a person incapacitated, not the standard to declare that a person has regained his capacity.

The rule and statute only say that the action to declare that a person has regained capacity must be “supported by affidavit … setting forth facts evidencing that the previously incapacitated person no longer is incapacitated.”  So, Mr. Schmidt could file an action pro se supported by an affidavit that he signs, not a physician, outlining why he believes he has his mental capacity and no longer requires his guardian.  The court would be forced to hear his case, and if Mr. Schmidt could prove his case, his guardianship would be dissolved.

Guardianships are very necessary court actions.  They are not actions designed to strip people of their rights and leave them with “no way out.”  Knowing that a ward has no money, our legislature and Supreme Court established a cost-free way out.