Assessing the Need for Guardianship and Conservatorship

By Donald D. Vanarelli, Esq.

The Difference Between Guardianship and Conservatorship

Guardianships and conservatorships are two types of legal actions conferring upon a designated individual (the guardian or conservator) the right to make surrogate decisions on behalf of another.

A conservatorship involves court-sanctioned substituted decision-making on behalf of an individual who is not incapacitated, but who, “by reason of advanced age, illness or physical infirmity, is unable to care for or manage his or her property or has become unable to provide for himself… or others dependent upon him… for support.” R. 4:86-12(b). Unlike a guardianship, which is an involuntary proceeding that cannot be consented to by the person in need of assistance, see Guardianship of Macak, 2005 WL 954874 (N.J. Super. A.D. April 27, 2005), a conservatorship can be sought by the individual needing assistance. Even if a conservatorship is approved, because the individual needing assistance is not incapacitated, he can later petition the court to have the conservator removed. Id.Similarly, a conservatorship cannot be established if that individual objects to the appointment. R.4:86-12( b).

A guardianship action, on the other hand, involves a court determination that the individual is “an incapacitated person who is unfit and unable to govern himself or herself and manage his or her affairs.” R. 4:86-2(b)(6). In the event that a determination of incapacitation is made, the court may appoint a “guardian of the person”, to make personal decisions such as living arrangements and health decisions, and/or a “guardian of the property” to manage the incapacitated person’s estate and finances. As set forth below, the court may also order a limited guardianship.

A guardianship action is an involuntary proceeding, and it may be established over the opposition of the incapacitated person in situations in which the individual has not made effective alternate voluntary arrangements (such as through a durable power of attorney).

When a guardianship action is commenced, the court appoints legal counsel for the subject of a guardianship action (the “alleged incapacitated person”). Court-appointed counsel for the alleged incapacitated person has a duty to act as “a zealous advocate for the wishes of the client.” In re M.R., 135 N.J. 155, 174 (1994) (citation omitted). Counsel must advocate a result that is consistent with the alleged incapacitated person / client’s preferences, rather than advocating for the client’s best interests. As directed by the M.R. case, court-appointed counsel for the alleged incapacitated person must be guided by R.P.C. 1.14, which provides that, when representing a disabled person, a lawyer should maintain, to the extent possible, a normal attorney-client relationship:

(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, … the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) A lawyer may seek the appointment of a guardian, or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.

Id. at 175. As M.R. instructs, “the attorney’s role is not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes. That role, however, does not extend to advocating decisions that are patently absurd or that pose an undue risk of harm to the client.” Id. at 176.

Following the M.R. case, the role of the court-appointed attorney was further explored by the court in In re Mason, 305 N.J. Super. 120, 125 (Ch. Div. 1997):

The court-appointed attorney in an incompetency matter represents the client’s wishes as an attorney would represent a client in any particular dispute. The individual, the subject of the incompetency hearing, has rights, preferences and desires that are not wholly usurped because of the action concerning his or her alleged incompetency…. Perhaps the only limitation placed upon such representation is that the attorney advocate on behalf of the client “unless the decisions are patently absurd or pose an undue risk of harm.”

Thus, in the event that the alleged incapacitated person objects to the finding of incapacity, the appointment of a guardian, or a more limited aspect of the guardianship, counsel for the alleged incapacitated person must advocate the client’s position unless it is “patently absurd or pose[s] an undue risk of harm.” In re Mason. As the M.R. case recognizes, even if the client is incapacitated, the client may wish to contest certain issues, such as the client’s place of residence.

The Concept of a “Limited” Guardianship

New Jersey courts recognize “limited guardianships”, in which the subject of the guardianship action is found to be an incapacitated person and a guardian is appointed, but the guardian’s powers are limited to those areas in which the incapacitated person does not retain decision-making capacity. As our Supreme Court has recognized, “the mere fact that a person is generally incompetent does not mean that person is incompetent for all purposes. A person who is generally incompetent can still make choices about specific matters.” In re M.R., 135 N.J. 155, 169 (1994). Thus, for example, an individual may be incapable of managing his own affairs, but may still be capable of making decisions regarding where, or with whom, to live. Id. It is for this reason that our Supreme Court has urged trial courts to consider the appointment of limited guardianships, rather than general guardianships, where appropriate. Id.

In practice, however, the use of limited guardianships is generally more prevalent in cases involving the developmentally disabled, as opposed to elderly clients suffering from dementia or Alzheimer’s disease. See Begley, T. and Jeffreys, J., Representing the Elderly Client, §17.04[D] at 17-9 (Aspen Publishers 2004).

Determining “Incapacity”: The Legal Requirements

The legal standard for determining “capacity” varies, depending upon the transaction in issue. For example, testamentary capacity (the capacity to make a valid will), is said to exist if, at the time the will is made, the testator is able to comprehend the property comprising his estate, the natural objects of his bounty, the nature of the act of making of the will, and how each of these factors relate to the other, as well as the distribution that is made pursuant to the will. In re Landsman, 319 N.J. Super. 252, (App. Div. 1999).

Contractual capacity, including the capacity to give consent to a medical procedure, is said to exist if the person reasonably understands “the nature, extent, character, and effect of the act or transaction in which he is engaged.” In re Schiller, 148 N.J. Super. 168, 180 (Ch. Div. 1977) (quoting 17 C.J.S.Contracts § 133(1)). Donative capacity, or the capacity to make a gift, exists if the donor is able to understand the “nature and effect of the transaction.” Pascale v. Pascale, 113 N.J. 20, 29-30 (1988).

In contrast, as set forth above, a guardianship action is predicated upon a finding by a court that the individual in question is incapacitated. The term “incapacitated individual” is defined by New Jersey statute to mean “an individual who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs.” N.J.S.A. 3B:1-2. The term is also defined to designate “an individual who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism or other cause (except minority) to the extent that he lacks sufficient capacity to govern himself and manage his affairs.” Id.

In New Jersey, in order to institute an action for guardianship, the petitioning party must include affidavits of two physicians (or of one physician and one licensed practicing psychologist), based upon a personal examination of the alleged incapacitated person made within 30 days of the filing of the complaint. The affidavits must include “the affiant’s opinion that the alleged mentally incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged mentally incapacitated person upon which this opinion is based.” R. 4:86-2(b).