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NJ SENIOR COUNCIL

ADVOCACY

As we get older we often need help and we usually receive it from our loved ones and friends.  But help should be given with respect and received with dignity.  “Stephie’s Story” is a story about an independent woman who didn’t want her life and her money controlled by a son she didn’t trust.  When her son filed a guardianship action trying to have her declared incapacitated, she was kept in legal limbo for almost a year and a half in our judicial system.  Only when she died did the judge finally dismiss the case.


 If a guardian is needed for a person’s safety and protection, it should be an emergent matter and treated as such by the court.  After all, that was the original intent of the law.  However, in practice, the guardianship law as it currently stands allows contested proceedings to be prolonged.  Stephie spent the last year of her life under a cloud of litigation with the stress and heartache that went with it.  


It is time that the system was changed.  The laws regarding the length of the proceedings as well as the determination of who can be the guardian must be revised.  We need our legislators to make the necessary changes in New Jersey's guardianship laws.

Stephie's Story:  A System That Needs Change

In 2009 at age 83, Stephie had a heart problem and was taken to the hospital.  Her son wasted no time.  He applied for guardianship of his mother and her money.  But Stephie recovered. A month after Stephie came out of rehab, she fought the action for permanent guardianship in court.  At the first hearing date, the judge dismissed the case.


Fast forward to summer 2014.  The son comes back for round two after Stephie got into a minor motor vehicle incident (no injuries, $600 in damages).  The son hires an attorney who sends him to two "experts" who both certify that his mother is incapacitated.  All it takes is a complaint with the two certifications and Stephie is hauled back into court. 


Before the initial court date in October 2014, Stephie saw her treating physician and a care assessor.  Both certified that she was NOT incapacitated.  Stephie also made out a Power of Attorney and a Health Care Directive naming her nephew to assist her.  When she went to court the judge would not make a decision on capacity, saying that a trial was needed, which the judge scheduled for March 2015.  Stephie continued to live alone at home using her nephew as her power of attorney and health care representative.


In January 2015 Stephie filed a motion to dismiss the case.  The judge denied it and required Stephie to be seen by an independent doctor and her son's expert doctor.  


The reports came back in March 2015.  The independent doctor said that Stephie was NOT incapacitated.  The son's expert doctor stated that Stephie understood that although she loved her son, she didn't want him in charge of herself and her money.  Rather, Stephie wanted to continue having her nephew assist her.


In April 2015 the judge now ordered Stephie to be seen by the son's original two certifying doctors for the purpose of determining who Stephie would want to assist her if the judge ruled that Stephie was incapacitated (even though the March reports said Stephie wanted her nephew to help). The judge rescheduled the trial to July 2015.


In June 2015 the judge ordered that Stephie, now age 89, must sit for an unlimited deposition (a questioning) by the son's attorney.   After four hours of interrogation on one day and two hours on another, the judge now scheduled the trial for August 2015.  During this entire time Stephie continued to live alone at home. Additional requests for dismissal were denied.


August 2015 came and the judge rescheduled the trial for January 2016, almost a year and a half after the son filed his complaint.  But the trial never took place.  Stephie passed away on December 16, 2015.  The judge dismissed the case on December 23.  After all, dead people do not need guardians.


This is a sad story. Most children care for their parents out of love not by court order. Whatever the merits of the case, the last year of Stephie's life was spent in a contentious litigation with her son. Instead of spending this time in the love of her family, she spent it asserting her lack of trust in her son and trying to escape his control. The case dragged on.  Perhaps the judge could have been more proactive in scheduling, but judges are busy and this was just another case on the calendar.

 
Guardianship is not supposed to be a punishment. It is meant to protect people who are at immediate risk and unable to care for themselves.  Because it removes the ability of a person to make decisions about the way she lives and takes away her rights, including the control and direction of her money, it should be a step of last resort. 


Guardianship actions should not be prolonged litigation.  Presumably if a guardianship action is filed claiming that a person is incapacitated, it is because immediate help is needed.  It should be incumbent upon the judge to have the matter resolved as fast as possible—to protect the person who is at risk or to dismiss the complaint as not meeting the necessary clear and convincing standard of proof. Stephie's case deteriorated into months of discovery, depositions and delay. If she needed help, she didn't get it from the court.  All she received was the stress of a case hanging over her like the proverbial sword ready to drop and sever her rights to live her own life as she pleased.


Reform is needed. Sons or daughters or whoever files in court as a plaintiff seeking to take over the money and dictate the care of an aged person, should not simply be allowed to initiate a case based on the say so of two people who are beholden to the plaintiff or plaintiff's counsel. This is especially true if the alleged incapacitated person objects to having his/her rights taken away.  Plaintiff should have to produce all the evidence at the time the case is filed and not be permitted to engage in prolonged discovery designed to find or develop a case or produce new evidence. Mere allegations should not be sufficient to tie a person up in court for over a year.  Tangible evidence and actual testimony by the plaintiff should be required at the onset.  All guardianship actions should be resolved within 30 days of filing. If the person needs help, she should get it. If the person is in danger, steps should be taken to prevent the risk.  It is vital to resolve these matters as soon as possible.  If the facts cannot be established, the case should be dismissed.  It can always be brought again if the situation changes. 


The New Jersey Constitution recognizes that everyone has the right to self-determination, the right to decide how he or she wants to live. It may not be the way your son or daughter wants you to live. But too bad. As we get older, our rights should be protected, not easily removed. Stephie's case is not about whether she needed help or not. Stephie's case is about whether she received justice and care from the court system. It is about whether the system works properly. Justice delayed is justice denied. And Stephie's case was delayed almost a year and a half. Other people should not have to suffer this same indignity, this same stress, this same heartache. Change is needed.

By Ellen Steinberg