I’M FINE, REALLY

When people are unable to make decisions for themselves and they failed to put in place a surrogate decision-making plan – a fancy phrase for financial powers of attorney and advanced health care directives – someone has to become their court-appointed guardian. Once a guardian is appointed for an individual, called the “ward,” the ward can no longer make decisions for himself. In other words, he doesn’t have the right to make decisions regarding his finances, health care, or living arrangements; he couldn’t enter contracts, get married, or vote.

So a guardianship is a pretty harsh procedure because it strips fundamental rights from a person. But what if the ward regains his mental capacity? Is there a procedure in place for the ward to be deemed to have regained his mental capacity, once a court has declared him mentally incapacitated?

The short answer is: Yes, there is a procedure that an individual can utilize to prove that he has regained his mental capacity and have the guardianship terminated. The short version of a long answer is: The law can be really complicated stuff and sometimes proving something that is obvious isn’t that easy.

Before I begin describing the procedure for terminating a guardianship and proving that a mentally incapacitated person has regained his capacity, let me say this – everyone should have a financial power of attorney and advanced health care directives (a living will and a health care power of attorney). These documents are vitally important to everyone over the age 18. I say that because once a person attains the age of 18 no one – not their parents, spouse, or children – can make decisions for them, so if they are unable to make decisions for themselves, someone will have to become their court-appointed guardian.

Have a power of attorney. Have a well-drafted power of attorney, because not all powers of attorney are the same.

For those who don’t heed these words of warning, a guardianship may be in their future. But, sometimes, people are only temporarily mentally incapacitated. For example, a person may be involved in an automobile accident and find himself unable to make health care and financial decisions for several months. During that period of incoherency, someone will have to make decisions for him, so a family member will probably become his guardian.

After several months of rehabilitation and convalescence, he may regain his capacity. Because a guardian has been appointed for him, legally, he can no longer make any decision – whether involving finances, health care, or living arrangements – for himself. For obvious reasons, he will want to terminate the guardianship.

To become someone’s guardian, the proposed guardian must hire a lawyer to represent her in the prosecution of the guardianship action. Two doctors examine the proposed ward and declare him unable to manage his affairs. The court appoints a lawyer for the proposed ward to represent the ward’s interests in the guardianship action. The court-appointed lawyer submits a report to the court, making recommendations regarding the need for a guardian. Finally, the court makes a decision.

This procedure is carefully spelled-out in the rules governing our courts, in New Jersey’s statutes, and in our case law. The same cannot be said for the procedure to terminate a guardianship.

Firstly, once someone has been declared mentally incapacitated, he cannot, legally, retain an attorney because retaining an attorney inevitably means that a contractual relationship between the ward and the attorney must be entered. But a ward cannot enter a contractual relationship because he has been declared mentally incapacitated. Secondly, lawyers are prohibited by the rules of ethics from representing an individual whom they believe to be mentally incapacitated.

Assuming that those hurdles can be overcome – no easy task – the actual procedure for reversing the guardianship isn’t spelled out in the rules of court in an effective manner. The rules do not indicate whether the reports of doctors must be obtained, opining that the ward has regained his mental capacity. If a report is necessary, the rules do not indicate if one doctor’s report or two are needed.

There are many unanswered questions with this procedure. What this tells us more than anything else is, plan ahead. Have a power of attorney and advanced health care directive. The alternative, while necessary, isn’t pleasant.