For those of you interested in elder law, here is an excerpt from my book, entitled New Jersey Elder Law: A Resource and Planning Guide. The book is available at http://www.lawjournalpress.com/.
5-1 What Is a Guardianship?
A guardianship is an involuntary court proceeding through which one (or more) person, called the “petitioner,” seeks to have a court appoint him as the guardian of another person, called the “ward.”[1] A guardian[2] is someone who manages the affairs—sometimes the financial affairs, sometimes the residential and health-related affairs, sometimes both—of the ward.
A guardianship is involuntary because the ward does not consent to the guardianship; in fact, a prospective ward cannot simply consent to a guardianship.[3] A court must adjudicate the ward as being an incapacitated individual who is incapable of handling his affairs in order for a guardian to be appointed for the ward. The court is required to follow certain procedures before it can enter a judgment of incapacity,[4] which will be discussed below.
In most instances, a well-drafted financial power of attorney document[5] and advance healthcare directive[6] can stave off the need to have a guardian appointed for a person. With a power of attorney and healthcare directive, the nominated agent can make most of the decisions that will ever have to be made for the principal, so even if the principal becomes incapacitated after signing the power of attorney and healthcare directive, the agent can make whatever decision may need to be made for the principal.
This is not universally the case. Sometimes, a power of attorney document is not well-drafted and fails to address a certain financial transaction that the agent may need to conduct for the principal, for instance, the power of attorney document may inadequately address the agent’s authority over the principal’s retirement accounts and the custodian of those retirement accounts may refuse to honor the agent’s request with regard to the accounts due to the power of attorney document being inappropriately drafted.
Alternatively, the principal may be engaging in actions that are dangerous to his safety or the safety of others, yet he may refuse to obtain necessary care, such as a home health aide or the services of an assisted living residence. For instance, the principal may be living alone in his home, regularly falling or leaving the gas stove on. This behavior is common for people with dementia, yet people in these circumstances often refuse care; they refuse a home health aide, they refuse to live in an assisted living residence. In these circumstances, a guardianship may be necessary even if the principal has signed a well-drafted power of attorney and advance healthcare directive. An agent under a power of attorney and advance healthcare directive cannot force the principal to do anything. In fact, even if the principal is patently mentally incapacitated, unless a court has adjudicated the principal to be incapacitated, he retains the right to revoke the power of attorney[7] and healthcare directive.[8] So, not only could the principal refuse to obey the agent’s requests, the principal could simply revoke the power of attorney and advance healthcare directive, leaving the agent with no authority whatsoever.
Unless a court has adjudicated the principal as being an incapacitated person, whether the principal retains capacity is a question of fact that must be resolved by a court. An adjudication of incapacity is not something that is decided by popular decision, so while all of the principal’s family members and friends may believe he is incapable of making his own decisions, if the principal does not believe that, he is free to make any decision he wants, irrespective as to whether that decision is good or bad. People make bad decisions all the time. Sometimes, the same person continuously makes bad decisions. But bad decisions do not equate to incapacity in all circumstances, though those decisions may be an indication of a problem.
Once a court has adjudicated a ward to be an incapacitated individual, the ward lacks the legal authority to refuse the decisions that his guardian has made for him,[9] and unless the ward can prove that he has regained his capacity[10] and a court has adjudicated a return to capacity, the guardian, not the ward, makes decisions for the ward.
Now there is certainly a difference between legal authority and practical authority. For instance, if dad’s home is cluttered with garbage and he continuously engages in unsafe behavior, such as leaving the gas stove running, his guardian can decide to place dad in an assisted living residence. The guardian has the legal authority to make that decision. But from a practical standpoint, if he does not want to go live in the assisted living residence, then the assisted living residence may not want him. A facility doesn’t want a resident who doesn’t want to be there if the resident’s behavior is disruptive to staff and other residents.
So, there is a difference between legal authority and the practical application of authority of which the reader should be aware. A general (or full) guardianship gives the guardian authority to make all decisions for his ward—financial decisions, healthcare decisions, and residential decisions—but the legal authority to make decisions is not necessarily the end-all and be-all to every issue that may arise regarding care decisions for an incapacitated individual.
[1]. N.J.S.A. 3B:1-2 (“Ward”).
[2]. N.J.S.A. 3B:1-1 (“Guardian”).
[3]. In the Matter of the Guardianship of Walter J. Macak, 377 N.J. Super. 167, 175 (App. Div. 2005).
[4]. R. 4:86-1 et seq.
[5]. N.J.S.A. 46:2B-8.1. et seq.
[6]. N.J.S.A. 26:2H-54. et seq.
[7]. N.J.S.A. 46:2B-8.10.
[8]. N.J.S.A. 26:2H-105(a).
[9] . N.J.S.A. 3B:12-36, 3B:12-38, but see 3B:12-56(d) (requiring a guardian to obtain court approval before voluntarily committing a ward to a psychiatric facility and prohibiting the guardian from continuing that commitment if the ward objects).
[10]. N.J.S.A. 3B:12-28, R. 4:86-7.