Guardianship Proceedings and Incapacity Issues

What should you do if your aging parent is succumbing to old age, illness, and there is either no power of attorney in effect, or a power of attorney is in place, but you suspect foul play?  Consider commencing a guardianship proceeding.   In such event, a family member with standing, such as a spouse, child, or beneficiary, may file a complaint on behalf of an incapacitated person seeking to be appointed as guardian.  A court may appoint a guardian to make decisions on behalf of the incapacitated person, including living arrangements and health care decisions.   The court may also appoint a guardian over the property of an incapacitated person who will have the authority to make financial decisions subject to a later accounting.   A determination of incapacity may be accomplished if there are two disinterested doctors willing to opine that an individual is mentally or physically incapacitated.   To aid in the decision making, a court may appoint an independent guardian ad litem, typically an attorney respected by the court, to meet with the alleged incapacitated individual, talk with the doctors and family members, and then file a report with the court.   The report will include a summary and a recommendation as to whether a guardian of the person and or property should be appointed. If family members disagree with the report, a court may hear from all parties and then issue an order.   There are also degrees of incapacity, and a growing trend allowing courts to limit a guardian’s powers based on the level of incapacity, thereby allowing the incapacitated person to retain whatever rights are deemed appropriate.

If one does have capacity, but other heirs may question capacity, post-mortem, you need to plan accordingly.  Why pay experts, take up the court’s time, and leave a legacy up to the discretion of the court?   If you have meaningful assets, and you are concerned about an antagonist challenging your will, there are several precautionary measures to consider, but certainly an option often dismissed as being expensive or not necessary, is in fact, not expensive and is necessary—videotape the signing of your will.   Since the signing ceremony will be on tape, you should not take an extra Xanax, or otherwise slur your words, as the videotape could then be used as evidence that you are incapacitated or under the influence of medication, and provide just the crack in the door that the antagonist is looking for.

Recent Cases:

Appointment of Guardian and Setting Aside Will and Transfers as Product of Undue influence

In the Matter of Lillian Glasser, an incapacitated person, 2011 N.J. Super. Unpub. ____ (Docket No.: A-0500-08T3; A-0505-08T3; A-0509-08T3) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County.  Before Judges Lisa, Reisner and Sabatino.

This appeal involved litigation between Lillian Glasser’s daughter, Suzanne, her son, Mark and Lillian’s nephew, Rick.  Litigation was spawned in Texas and New Jersey.  After trial in New Jersey, the trial court found that Suzanne had exercised undue influence over Lillian in having a December 2002 will and POA prepared and signed by Lillian naming Suzanne as agent and favoring her and her children.  Mark acted in ways disruptive to Lillian’s care.  On the application of Rick, Lillian’s nephew, the court appointed a third party attorney to act as Lillian’s guardian over her person, and a financial institution as guardian over her property.  The trial court found that Suzanne should reimburse Lillian’s estate for monies used by Suzanne for her own counsel fees, and for counsel fees spent by Suzanne in created a family limited partnership for Lillian in Texas which was the product of undue influence.  The court awarded Mark some fees and denied fees to Suzanne’s children who intervened in the action.  The December 2002 Will and the FLP were also set aside.

On appeal, Suzanne claims the court erred in failing to grant her fees, in removing her as her mother’s health care representative and in deciding the issue of undue influence.  The Appellate Division affirmed, finding the trial court’s decision well founded on the facts.  At the time the FLP and Will were prepared, Lillian was vulnerable to undue influence.  She had just had surgery and although not yet incompetent, had dementia and was in a weakened state.  It was at this time that Suzanne took advantage of her mother and arranged for her to see an attorney selected by Suzanne.  The terms of the new Will were more favorable to Suzanne, and the new POA named Suzanne as sole agent.  Suzanne also convinced Lillian to sign some FLP documents, which she could not understand.  Thereafter, Suzanne isolated Lillian and created a FLP on her behalf by using the POA, transferring all of her assets.  The FLP also favored Suzanne and her children.  Lillian’s nephew Rick brought suit in New Jersey to have these transfers scrutinized and to have a third party appointed as guardian.  The court agreed, and removed Suzanne and surcharged her for her conduct.

Dismissal of Complaint

In the Matter of Susan Keeter, an alleged incapacitated person, 2011 N.J. Super. Unpub. ____ (Docket No.: A-0553-10T4) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Monmouth County.  Before Judges Yannotti and Roe.

Plaintiff appeals the dismissal of her complaint seeking a guardianship over her mother, Susan.

In support of her complaint, plaintiff submitted sworn certifications from two doctors to support her position that Susan was sufficiently incapacited.  According to these reports, Susan exhibited dementia and was unable to administer her own medications.  The court appointed an attorney for Susan, who interviewed her and also hired a doctor on her behalf.  This doctor reported that although Susan had early signs of possible dementia, she was not incapacitated.  The court appointed attorney’s report detailed Susan’s objection to the appointment of a guardian, and recommended a conservator over her assets.  Prior to the hearing, Susan hired her own attorney who asked the court to forego oral testimony on the return date of the order to show cause, and the court agreed.  The court then rendered a decision dismissing the complaint, finding that plaintiff failed to meet her burden of proof by clear and convincing evidence that Susan was incapacitated.

On appeal, the lower court’s decision was affirmed.  The court was not required to take testimony on the return date of the order to show cause and its decision was based on competent evidence in the record.

Declaration of Incapacity for Litigation Purposes

In the Matter of Robert Cohen, an alleged incapacitated person, 2011 N.J. Super. Unpub. ____ (Docket No.: A-5852-08T2) (App. Div. 2011).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County.  Before Judges Carchman, Graves and St. John.

Plaintiffs appeal from an order of the Probate Part denying plaintiffs’ application to have defendant, Robert Cohen, declared incapacitated for the purposes of litigation pending between the parties.

The lower court determined that the defendant was not incapacitated and rejected the appointment of a guardian ad litem, as he was represented by competent counsel.  The Appellate Division affirmed, finding that the court’s decision was supported by substantial credible evidence.

Although defendant suffers from Parkinson’s disease and had progressing physical disabilities, the court found that he was able to understand the litigation.  He continued to go to the office and the physician reports support a finding that defendant had the ability to discuss and give intelligent consideration to all of the issues, including financial matters.  The lower court found that plaintiffs failed to prove incapacity by clear and convincing evidence as required.  The Appellate Division also held that the guardianship statute does not require a court to appoint a third party attorney to represent the interests of the incapacitated person in light of his competent counsel.

Standing to Sue

In the Matter of Costa Nova, an alleged incapacitated person, 2011 N.J. Super. Unpub. ____ (Docket No.: ESX-CP-0196-10) (Ch. Div. 2011).  Decision by the Superior Court of New Jersey, Chancery Division, Probate Part, Essex County.

Costa Nova is a 99 year old resident of Montclair.  The Plaintiffs are friends of Mr. Nova who had been appointed as attorney in fact under an advanced directive and power of attorney in 2008 and 2009.  In 2010, Mr. Nova revoked the power of attorney and advanced directive, naming his attorney under the power of attorney and his caregiver as agent under his advanced directive.  Plaintiffs field suit seeking appointment as guardians.

Mr. Nova was examined by several doctors and the reports were inconclusive.  The doctors opined that Mr. Nova is not totally incapacited.  This was supported by the guardian ad litem, who reported that although Mr. Nova needed some assistance, he was not incapacitated.

Mr. Nova’s counsel filed a motion to dismiss claiming that plaintiffs lacked standing to pursue the guardianship.  The Court agreed and dismissed the action.  The plaintiffs are former friends ofMr.Novaand former attorneys in fact under a revoked power of attorney, they have no legal or equitable interest inMr.Nova’s assets, and therefore lack standing.

Plaintiffs sought to amend their pleadings to challenge the revocation of the power of attorney, which was denied, and the matter dismissed.

Appointment of Guardian

In the Matter of Edwin O. Gilbert, an alleged incapacitated person, 2010 N.J. Super. Unpub. _____ (Docket No.: A-1119-09T2) (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County.

The trial court appointed Stephen Gilbert as permanent guardian over his father, Dr. Edwin Gilbert.  Ellen Heine, appellant, a joint tenant with Dr. Gilbert in certain real property, objected to the appointment.

Dr. Gilbert suffered as stroke resulting in his inability to use language, making him incoherent.  Appellant befriended Dr. Gilbert and his wife and eventually moved in with them.  Appellant objected to the appointment of Dr. Gilbert’s son, questioning his motives.  Because of questions raised in the complaint pertaining to some financial transactions made by appellant on Dr. Gilbert’s behalf, the court restrained her from presenting any financial documents to Dr. Gilbert for signature.  The court appointed a local attorney as Dr. Gilbert’s attorney who reported back to the Court as to Dr. Gilbert’s personal and financial status.  There were questions raised as to the use of the rents of the property owned jointly between appellant and Dr. Gilbert, and the state of Dr. Gilbert’s house and affairs.

Based on this report, the court appointed Dr. Gilbert’s son as permanent guardian, finding Dr. Gilbert incapacitated and citing the fact that Dr. Gilbert’s family supported the appointment.

The lower court’s appointment was affirmed, citing the fact that Dr. Gilbert’s son acted as temporary guardian for 8 months without issue.  The lower court was also not required to appoint a guardian ad litem in the matter, as Dr. Gilbert was represented by counsel.

Control of Visitation Rights

In the Matter of the Estate of Ann F. McNierny, an Adjudicated Incapacitated Person, 2010 N.J. Super. Unpub. LEXIS 2307 (Docket No.: BER-P-89-10) (Ch. Div. 2010).  Before Judge Koblitz, Superior Court of New Jersey, Chancery Division, Bergen County.

In this matter, the Court held that the court appointed guardian had the authority to control the visitation rights of an incapacited person?

Ann McNierny (“Ann”) was adjudicated an incapacitated person on 12/4/06, and 2 of her 5 children were appointed as co-guardians.  In 2008, Ann was admitted to an assisted living facility.  A son, Patrick, would often visit Ann at the facility.  These visits became a problem, as Ann became upset every time that Patrick would visit.  In order to keep these issues to a minimum, the co-guardians set out a supervised visitation schedule for Patrick’s visits with Ann.  Patrick totally disregarded this visitation schedule.  As a result, the co-guardians asked the facility to deny Patrick access to Ann.  Patrick filed a complaint with the Office of the Ombudsman for Institutionalized Elderly.  The investigator found out that Ann welcomed visits from Patrick and that his visits were not disruptive.  The investigator further concluded that the co-guardians lacked authority to deny Patrick access to Ann.

The co-guardians filed a Complaint in Chancery Court, claiming that they had the requisite authority to control the visitation rights of Ann.

A general guardian has the right to exercise all rights and powers of the incapacitated person except as limited by the judgment.  N.J.S.A. 3B:12-24.1; N.J.S.A. 3B:12-48.  There were no limitations placed on the co-guardians in the judgment.  The co-guardians had the authority to make decisions on behalf of their ward, but must defer to the ward’s preferences if not contrary to the ward’s best interest.  This right of self-determination must be balanced by the court against the ward’s best interests.

The Court held that, as a general proposition, guardians have the authority to exercise their discretion in denying visitation rights.  The Court also found that the Office of the Ombudsman for Institutionalized Elderly unreasonably interfered with that authority.  In the event a party is aggrieved by their decision, he or she has the right to seek redress in Chancery Court.


In the Matter of Ferne Marie Banford, an alleged mentally incapacitated person, 2010 N.J. Super. Unpub. ____ (Docket No.: A-4853-08T2) (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County.

This matter involved an appeal of the lower court’s decision declaring Ferne Marie Banford incapacitated and granting her son guardianship over her person and property.  Her daughter appealed, claiming that her mother was not physically disabled and that she was able to care for her mother in her home rather than the assisted living facility where she resided.   The lower court’s decision was affirmed on appeal.

In making a decision as to the appointment of guardian, the lower court noted that the incapacitated person had given her son power of attorney over 10 years ago and that he acted responsibly with the care of his mother, while the actions of appellant daughter were questionable.  Once a finding of incapacity is made, which was not questioned in this case, the lower court had broad discretion on the choice of guardian.  Finding that the lower court chose a guardian who was favored under the statute and who acted as caregiver for many years, the appellate division held that the court properly exercised its discretion and affirmed its decision.

Legal Malpractice

Holvenstot v. Nussbaum, 2010 N.J. Super. Unpub. ____ (Docket No.: A-2987-08T3) (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Law Division, Burlington County.  Before Judges Grall and Alvarez.

Plaintiff appeals from the trial court’s order granting summary judgment for defendant law firm denying plaintiff’s claims of legal malpractice and misrepresentation.

Plaintiff claimed that he was given false information in opposition to a guardianship action that plaintiff filed back in 1993, when Decedent was declared competent.  Plaintiff also claimed that defendant law firm committed malpractice in allowing Decedent to cut plaintiff out of her will.

Decedent lived with plaintiff and his family from September 1992 through May 1993.  She then stayed with her daughter, who brought plaintiff to defendant law firm in May 1993 to make another will, leaving her estate in equal shares to her four children.  In June of 1993, plaintiff brought a guardianship action seeking to declare Decedent incompetent.  Defendant law firm provided a certification of Decedent’s competence.  In July of 1993, Decedent executed a hand written will cutting plaintiff out as beneficiary.  There is no evidence that defendant law firm had anything to do with this handwritten will.  On September 13, 1993, the court found Decedent competent and dismissed plaintiff’s guardianship action.  On September 30, 1993, defendant law firm prepared a will for Decedent which she executed, cutting plaintiff out as beneficiary.  Decedent also signed a codicil in May of 1995 affirming the terms of the September 30th, 1993 Will.

The court found that plaintiff failed to produce any competent evidence supporting his claims and summary judgment was therefore granted, which was upheld on appeal.

Special Medical Guardian

In the Matter of J.M., For Appointment of a Special Medical Guardian, 2010 N.J. Super. Unpub. ____ (Docket No.: BER-P-036-10) (Ch. Div. 2010).  Before Judge Koblitz, Superior Court of New Jersey, Chancery Division, Bergen County.

This case is similar to other emergent medical applications where the Chancery Court must make an immediate life or death decision regarding whether or not to limit an individual’s right of self-determination.

This action was filed by Valley Hospital seeking the appointment of a special medical guardian on behalf of J.M.  The Complaint asserted that J.M. was critically ill and lacked the mental capacity to consent to medical treatment.  An affidavit from the treating physician certified that treatment was necessary to save J.M.’s life.  There were also two (2) affidavits from separate psychiatrists at the hospital certifying that J.M. lacked capacity to make decisions regarding her medical care.  A social worker certified that J.M. had no immediate family other than a 17 year old son, and there was no health care directive or proxy.

J.M. was generally aware of her medical condition and refused dialysis.  Counsel was appointed for J.M., and submitted a comprehensive report for the Court, recommending the appointment of a special medical guardian for J.M.  A second attorney was appointed to advocate for J.M.’s wishes.

Within 24 hours of filing the Order to Show Cause, a plenary hearing was held.

The Court recognized J.M.’s right to refuse medical treatment.  She accepted other treatment but refused dialysis, claiming that God would save her.  Although she has a Constitutional right to refuse treatment, she was unable to comprehend that refusing dialysis would lead to certain death.  The Court therefore appointed a special medical guardian on her behalf, and dialysis was successfully administered.

Incapacitated Individual – Withholding Treatment

Betancourt v. Trinitas Hospital, 2010 N.J. Super. Unpub. ____ (Docket No.: A-3849-08T2) (App. Div. 2010).  On appeal from the Superior Court of New Jersey, Chancery Division, Union County.  Before Judges Carchman, Parrillo and Ashrafi.

This decision is a good case study on the standards of review for withholding treatment to an incapacitated individual without an advance directive.

Ruben Betancourt underwent surgery at Trinitas hospital to remove a tumor.  While recovering, the ventilation tube became dislodged, placing him in a permanent vegetative state.  Ruben did not have an advanced directive.  The hospital, over the objection of the family, placed a Do Not Resuscitate (“DNR) order in his file.  Ruben’s daughter filed a Complaint in the Chancery Division seeking a restraining order, which was granted.  A hearing occurred 2 weeks later, and plaintiff was appointed as her father’s guardian to make life or death decisions.  The lower court held that such decisions should be made by a surrogate who could take Ruben’s value systems into account when determining what medical treatment was appropriate.  The hospital appealed.  During the appeal, Ruben passed away.  The Appellate Division dismissed the appeal as moot, finding that the decision was not a matter of substantial public importance.

Appointment of Daughter in Lieu of Second Husband

In re FlorettaSutton-Logan, An Incapacitated Person, 2009 N.J. Super. Unpub. LEXIS 2335 (Docket No. A-5220-07T3) (App. Div. 2009).  Before Judges Lihotz and Baxter.

Issue:  Is the Court’s appointment of the daughter of the Incapacities Person over her second husband proper?

Holding:  Yes.

The Court first determined that domicile is properly laid in New Jersey, despite contacts in Virginia, and also that the incapacitated person’s daughter was best suited to act as guardian based on the facts as presented.

“Jurisdiction over an incompetent person requires a determination of domicile.”  In re Seyse, 353 N.J. Super. 580, 803 A.2d 694 (App.. Div.).  Unlike a residence, “[d]omicile is a place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.”  In re Michelsohn’s Will, 136 N.J. Eq. 387, 390, 37 A.2d 118 (Prerog. Ct. 1944).  Based on the trial Court’s findings, the determination of domicile was affirmed.

Under N.J.S.A. 3B:12-25, there is a statutory preference in favor of family members in the appointment of special guardians.  The trial Court is given discretion to appoint a guardian in the best interest of the incapacitated person.  The statute does not provide a mandate that the first choice must be the incapacitated person’s spouse, it merely provides a list of potential persons which must be given “first consideration” before the appointment of the Public Guardian is made.  Therefore, both the incapacitated person’s spouse and her daughter were properly considered.

In rendering it’s decision, the trial Court was swayed by the fact that the incapacitated person’s daughter was named as attorney in fact of her Power of Attorney and Advanced Directive, that the daughter was named as joint tenant on her bank account and the fact that the daughter had handled the incapacitated person’s financial affairs since the death of her first husband.  Deferring to the trial Court, the determination that the incapacitated person’s best interests were served by the appointment of her daughter as guardian was affirmed.

Challenge to Declaration of Incapacity and Appointment of Guardian

In re VirginiaVignola-Cavallone, An Alleged Incapacitated Person, 2009 N.J. Super. Unpub. LEXIS 807 (Docket No.: A-5561-06T3) (App. Div. 2009).  Before Judges Cuff, C.L. Miniman and King.

Issue:  Was the declaration of incapacity and appointment of guardian proper?

Holding:  Yes.  The Court made a declaration of incapacity and appointed the daughter of the incapacitated person as guardian over her person and property, despite objections from her son.  The Court did so by finding that the daughter lived in close proximity to her mother, had been primarily responsible for her mother’s personal care for years, that she insisted that the funds derived from the sale of her mother’s home be set aside for her mother’s care, and that the daughter would not prevent her brother from seeing her mother and would involve him in health care decisions.  On the contrary, the appellant son was headstrong and the Court feared that he would bar the daughter from seeing their mother.  The Court also cited appellant’s unorthodox money management and the fact that he viewed his interests and his mother’s interests as synonymous.  The appointment of the daughter as guardian of the person and property was therefore affirmed.

Restraining Order Against Son

In re Estate of MaryD.Freeman, 2009 N.J. Super. Unpub. LEXIS 3129 (Docket No.: A-3513-08T3) (App. Div. 2009).  Before Judges Parrillo and Lihotz.

Issue:  Was the probate Court’s issuance of a restraining order preventing Defendant, a son of the incapacitated person, from visiting his mother between 7 am and 1 pm, Monday through Friday, proper in light of the Defendant’s constant harassment of the home health aides hired to provide necessary care?

Holding:  Yes, the restraining order was proper under the circumstances.

The probate Court issued a restraining order preventing Defendant, a son to the incapacitated person, from visiting her house between 7 am and 1 pm, Monday through Friday, to prevent Defendant from interfering with the care provided by her home health aides.

The restraining order was issued in response to a complaint filed by another son of the incapacitated person, who was appointed guardian, and was sent to prevent Defendant’s continuing harassment of the home health care aides.  Defendant was one of six children and the record was clear that he continuously harassed the home health aides hired by the guardian to care for their mother.  The guardian sought restraints, which was granted pursuant to the probate Court’s authority to handle guardianship matters and were properly based on the certifications and attachments submitted by the guardian of which he had personal knowledge and was competent to testify. The trial Court also denied Defendant’s application to be appointed as co-guardian.