Medical science has been so successful in extending the life expectancy of so many Americans that we are faced today with an ever-expanding population of elderly people, increasingly incapable of handling their own affairs. These people are often our own mothers and fathers. At the other end of the spectrum, amazing medical advances in prenatal and neonatal care leave us sometimes with the mixed blessing of beloved children unable to assume adult responsibility once they reach the age of majority. For both of these difficult situations, legal tools exist that provide protection for the incapacitated members of our society and peace of mind for those responsible for or concerned about their care.
Addressing first the elderly, incapacitated population, the key concept is prevention. Not prevention of the illness or condition that renders the person incapacitated – that lies in the realm of medical science. But, rather, prevention of the situation that leaves one without necessary legal instruments that could obviate or at least minimize the need for costly, uncomfortable and sometimes contentious legal proceedings.
Living wills (advance directives) were recognized in New Jersey in early 1992. New Jersey Statute 26:2H-53 known as “New Jersey Advance Directives for Health Care Act” came into existence based on recommendations of the New Jersey Bioethics Commission – a commission established in the aftermath of the tragic Karen Quinlan debacle.
The statute permits a person to name a health care representative (sometimes called a health care proxy) and to make a statement of personal wishes regarding health care in the event of loss of decision-making capacity (sometimes called an instruction directive). The advance directive becomes operative when given to a treating doctor or health care institution and when the person is determined to lack capacity to make a particular health care decision. Another physician must confirm the determination that a person lacks such capacity. Once operative, the advance directive allows the proxy to participate in decision-making including the issuance of a “Do Not Resuscitate” (DNR) order. Additionally, the statute describes the conditions and circumstances in which withdrawal of life supporting measures may occur consistent with the advance directive.
Despite its availability for more than a decade, too few of our population have executed advance directives. What this means in real life is that elderly people too often undergo full cardiopulmonary resuscitation at home or in the hospital, despite questionable quality of life, leaving them potentially hooked to numerous medical devices that are difficult, if not impossible, to remove.
Advance directives address the health care piece of elder person decision-making. They do not address the situation of the elderly parent afflicted with a disabling dementia unable to handle its financial matters and unable to make rational choices. Often, a power of attorney (POA) is helpful when the parent is cooperative or at least when the parent is physically and mentally unable to thwart the objective of the appointed person under the POA. When lack of cooperation in the context of decreasing capacity occurs, often the court, by way of guardianship proceedings, is the only reasonable alternative.
A guardianship action can be instituted by an interested individual (e.g., a spouse, child or parent), by a social service agency including Adult Protective Services or by a health care facility at which the allegedly incapacitated individual resides. The petition seeking an adjudication of incapacity and the appointment of a guardian of the person and/or property of the individual must be accompanied by affidavits of two physicians or a physician and a psychologist who have examined the person and who attest to the person’s inability to manage its own affairs. The person’s assets, including sources of income and real property, must be identified.
Once the papers are filed with the court, a hearing date is established and the court appoints a lawyer to represent the allegedly incapacitated person. That lawyer is vested with the obligation to act in accordance with the wishes of the allegedly incapacitated person. The court-appointed lawyer must interview the client and offer its opinion regarding the ability of the person to handle its own affairs. Also, the lawyer must contact available potential guardians and determine the plan that person would institute on behalf of the allegedly incapacitated person and ultimately weigh in on the issue of whether the person is incapacitated and who should be appointed guardian. Previously executed documents including the last will and testament, advance directive and power of attorney are all scrutinized in the attempt to select the best person to act as guardian.
Should the court deem it necessary, a guardian ad litem may be appointed to evaluate the best interests of the allegedly incapacitated individual. In the vast majority of cases, the allegedly incapacitated individual cooperates with the proceeding and the obvious person is appointed guardian. When the allegedly incapacitated individual opposes the appointment or plan, a trial occurs with the judge ultimately deciding whether a judgment of incapacitation is appropriate and who should be appointed guardian. Either way, the court will require the guardian to post a bond roughly equivalent to the value of the person’s assets. Periodic reporting to the court is also routinely required. When no one is available to act as guardian, the New Jersey Office of the Public Guardian typically steps in and handles the person’s affairs.
Once the necessary paper work is completed, the guardian, depending on the extent of the appointment, becomes fully able to act on behalf of the ward (the incapacitated person). This may include seeking judicial approval to sell real estate, engage in estate planning designed to minimize tax liability and asset preservation, purchase funeral insurance, engage caregivers to provide care to the incapacitated person, admit the incapacitated person to a long-term health care facility and many other important and necessary actions in the best interest of the ward. In fact, plans that preserve assets and even result in heirs (rather than third party payors) benefiting financially from the assets of the incapacitated person are encouraged in our State!
Depending on the condition of the person and the recommendations of the doctors and the court-appointed attorney, the court may reject the guardianship petition entirely (though that rarely happens) or may utilize a less onerous mechanism by appointing a conservator who is entrusted solely with the management of the person’s property.
When the incapacitated person has financial assets, much (if not all) of the expense associated with a guardianship proceeding is borne by the incapacitated person’s estate. Some judges will make the party bringing the petition, especially if it is an individual who himself has assets, bear some of the legal expense. Obviously, if the incapacitated person has no assets, then the party bringing the action must bear full freight. Given the savings that intelligent asset preservation plans can achieve, the potential costs associated with a guardianship action that is indicated are small indeed.
The same general principles that apply to adult guardianship actions apply to guardianship actions involving developmentally delayed children as well. There, however, one of the two affidavits must be from the CEO, medical director or other officer having administrative control over a Division of Developmental Disabilities program servicing the allegedly incapacitated child. The other affidavit must be authored by a physician or a psychologist. It the petition seeks only a guardian of the person of the child, the Office of the Public Defender, if available, is appointed attorney to the child. If not available or if the petition seeks appointment of a guardian for both the person and the property of the child, the court appoints an attorney to represent the alleged incapacitated child. The appointment may be consummated without hearing if one is not requested and if the attorney for the child does not contest the need for or selection of the guardian. Keep in mind that a guardian need not be appointed until the child reaches the age of majority.
In the routine, uncontested guardianship action, the entire process is typically concluded within a couple of months. Though some expense, both financially and emotionally, is implicit in the process, the benefits are considerable. Necessary living arrangements can be implemented. Needed medical care can be provided. Reasonable financial decisions can be made. Better yet, with advance planning by way of Will, advance directive and power of attorney, much of the uncertainty can be eliminated from the process. As they say, “Getting old is not for sissies.” Why not make it as painless as possible?
