I’m pleased to report that 2010 yielded a rich harvest of guardianship decisions from cases filed throughout New Jersey. I’ve also identified some great cases from 2009 that deserve placement on any “Top Ten” list. They are all well-reasoned opinions from a variety of trial and appellate court judges in our state. I had the privilege of being personally involved as trial counsel in several of the cases listed below. Enjoy!

(1) Sable v. Abo, No. A-1820-08T2 (Jan. 20, 2010) (Professional Who Is Appointed As Temporary Guardian By The Court Is Entitled To Absolute Immunity From Liability)

Harry Sable provided his son Barry with a power of attorney authorizing him to act as Harry’s financial and health care agent. Years later, Harry’s other son Michael  filed a lawsuit seeking guardianship of his father and the removal of Barry as his father’s fiduciary. The court entered an order removing Barry as Harry’s financial and health care agent and appointing Martin Abo (Abo), a certified public account, as temporary guardian of Harry’s property. Based on the temporary guardian’s report and testimony, the court found that Barry had unduly influenced his father Harry, thereby violating his fiduciary duty, and entered judgment against Barry. Barry then filed a separate lawsuit against the temporary guardian, alleging accounting malpractice and negligent misrepresentation. The court found that temporary guardian was entitled to absolute immunity from liability. On appeal, the appellate court affirmed. I previously blogged about the Sable v. Abo case here.

(2) In the Matter of J.M. for the Appointment of a Special Medical Guardian, Bergen County, Docket No. P-036-10 (Koblitz, July 2, 2010) (The Court discusses the differences between a Court-Appointed Counsel and a Guardian Ad Litem–Special Medical Guardianship)

In J.M., Valley Hospital sought the appointment of a special medical guardian to consent to life-saving dialysis treatment for J.M. J.M.’s  treating physicians indicated that dialysis was immediately necessary to save her life, but she refused treatment. After conducting an investigation, J.M.’s court-appointed attorney recommended, against J.M.’s wishes, that a special medical guardian be appointed so that dialysis treatments could begin. The court discharged that attorney and appointed a new attorney to represent J.M., directing the second attorney to advocate for J.M.’s expressed wishes. The court found that, in making recommendations contrary to J.M.’s wishes, the first attorney had acted as a guardian ad litem rather than legal counsel for J.M. The court ultimately found that J.M. was, in fact, incapacitated. A special medical guardian was appointed, and dialysis was provided which saved J.M.’s life. My blog post about the J.M. case can be found here.

(3) In Re Freeman, An Incapacitated Person, 2009 WL 5149960 (Superior Court of New Jersey, Appellate Division, Dec. 31, 2009) (Limiting visitation by a ward’s adult child did not deprive the adult child of a property interest without due process of law)

A son was not deprived of a property interest without due process of law when he was ordered not to enter his elderly mother’s home while health aides were there from 7:00 a.m. to 1:00 p.m. The mother’s other children filed a complaint to restrain their brother from communicating with the mother’s health aides after he consistently insulted, criticized, and confronted the aides. The son argued that he was deprived of his property interest because he had a putative interest in his mother’s estate, but he offered no legal support that his mere expectancy was entitled to due process protection. The court entered judgment in favor of the family and against the objecting son.

(4) In the Matter of T.S., An Alleged Incapacitated Person (Judge Rules In Favor Of Alleged Incapacitated Person In Contested Guardianship Lawsuit, Dismissing Complaint Filed By Adult Child)

After more than two years of litigation and eight days of trial, Superior Court Judge rules in favor of the alleged incapacitated person (AIP), dismissing adult child’s guardianship complaint. The court ruled that “[T]he AIP does not want a guardian and he wants to spend his money how he pleases. He wants to make his own decisions in a manner that makes his life good and meaningful and he has done so. He also wants to reside in his home and he is able to do so. It is his fundamental right to make such choices because he is a competent person.” I litigated this case on behalf of the AIP. My previous blog post about the T.S. case can be found here.

(5) Matter of the Estate of Ann F. McNierney, BER-P-89-10, Ch. Div. Bergen Cty. (Doyne) (Plenary Guardians Control Visitation Rights Of Their Ward)

This is a great case. Two of Ann McNierney’s children were appointed as her co-guardians. After another child, Patrick, visited Mrs. McNierney in her residence, an assisted living facility, she became agitated. As a result, the co-guardians prohibited Patrick from visiting their mother. Patrick filed suit, challenging the prohibition on visitation imposed by the co-guardians. The trial court ruled that, under the guardianship statutes, a plenary guardian has “all the powers conferred upon the guardian by the law and the provisions of this [statute] except as limited by judgment.” Thus, plenary guardians control the visitation rights of their ward. The Court held that anyone, such as Patrick, who disagreed with a plenary guardian’s decisions regarding visitation must seek court intervention to remove the guardian. Here is my prior blog post about the McNierney case.

(6) W.B. v. Division of Medical Assistance and Health Services, No. A-5658-07T1 (N.J. App. Div. Feb. 24, 2010) (Appeals Court affirms Medicaid’s denial of eligibility to an incapacitated applicant, based on the applicant’s ownership of assets that neither she nor her guardian were aware she owned)

After applying for Medicaid on W.B.’s behalf, her adult son and other family members discovered that W.B. owned stock worth $6,289.25 (above the $2,000 Medicaid resource limit). The Board of Social Services determined that W.B. was eligible for Medicaid benefits as of May 1, 2007. The son appealed, contending that December 1, 2006 was the appropriate eligibility date. On appeal, the Medicaid agency held that, despite W.B.’s family’s ignorance of the existence of the stock, W.B. had the “right, authority, or power” to liquidate the asset, and that the stock was therefore a countable resource. The son appealed to the Appellate Division which affirmed the agency’s decision, concluding that W.B.’s stock ownership through April 2007 provided a “reasoned basis” for the agency’s  eligibility determination. I previously blogged about the W.B. case here.

(7) Arnold Walter Nursing Home v. Pumarejo, No. A-4313-08T3 (Mar. 23, 2010) (Son Not Liable For Unpaid Nursing Home Bill, Even Though Transfer Of Incompetent Father’s Home To Guardian/Son Caused Father’s Medicaid Ineligibility)

A father transferred his home to his son for $1. About 2 years later, the father became a nursing home resident. The son’s wife (and resident’s representative) signed an agreement to pay all nursing home bills that were not paid by Medicaid from the resident’s personal assets. The nursing home was informed at the time of admission that the father had transferred his house to his son.

After the father’s Medicaid application was denied because of the house transfer, the nursing home attempted to collect the fees owed from the son and his wife. The motion judge granted the son’s summary judgment motion and the nursing home appealed. The appellate court affirmed the motion judge’s decision, on two bases: first, the admission agreement contained no requirement that assets other than the father’s be used to satisfy his financial obligations; and second, there was nothing wrongful in the transfer of the home since, under New Jersey law, Medicaid planning is legally permissible. I blogged about this case here.

(8) Estate of Claudia Cohen v. Cohen, Law Div. — Bergen Co. (Koblitz, P.J. Ch.) (Challenger of the validity of a gift made during the life of the grantor lacks standing to assert a challenge in court unless the challenger is the guardian of the grantor)

This case holds that, under New Jersey law, the only people who have legal standing to bring a court action to force the return a gift  are: (1) The grantor (person who made the gift); (2) The guardian of the grantor, so long as the grantor is still alive; and, (3) The executor of the grantor (or administrator of the estate if there was no will), if the grantor has died. Thus, when a grantor makes a gift during his/her lifetime and another party files a legal challenge to that gift before the grantor dies, the challenger should also seek a guardianship over the grantor if that person is no longer competent. Otherwise, the challenger may be barred from seeking the return of the gift due to lack of standing.

(9) R.C. v. Division or Medical Assistance and Health Services, OAK DKT. NO. HMA 08047 – 10 (Hudson County, October 22, 2010) (Judge Awards Benefits To Medicaid Applicant Who Made A Gift “Exclusively For A Purpose Other Than To Establish Medicaid Eligibility”)

R.C., through his wife and guardian P.C., applied for nursing home Medicaid benefits in 2010. The state Medicaid agency denied R.C.’s application for Medicaid benefits because R.C. and P.C. gifted $100,000 to their daughter and son-in-law in 2008 in violation of N.J.A.C. 10:71-4.7, and a period of ineligibility for Medicaid resulted from the gift.

After the Medicaid agency denied his claim for nursing home Medicaid benefits, R.C. appealed. A hearing was held. After the hearing, the administrative law judge (ALJ) found that, in the usual case, a gift of $100,000 would make an applicant ineligible for Medicaid benefits. In this case, however, the ALJ found that R.C. and P.C. had proven by convincing evidence that the gift was made solely and exclusively for some purpose other than establishing Medicaid eligibility. That is, the applicant proved that he was employed and in good health when the gift occurred, and that the disabling stroke, which occurred after the gift was and was the cause for R.C.’s nursing home admission, was an unanticipated event. As a result, the ALJ found that the the resource was transferred exclusively (that is, solely) for a purpose other than to establish Medicaid eligibility. I represented R.C. and P.C. in filing the application and at the hearing. I previously blogged about the R.C. case here.

(10) Betancourt v. Trinitas (New Jersey Court Rules That Hospital Must Resume Life Support For Patient In Vegetative State)

A New Jersey court ordered life support resumed for a patient who was in a vegetative state for 14 months, restraining a hospital from taking it upon itself to discontinue or suspend treatment, and rejecting arguments that public health considerations take precedence over the patient’s family’s wishes. The judge ruled that a court’s role is not to decide on the removal of medical treatment but to respect the patient’s right to self-determination. Where the patient is unable to enunciate his wishes, the “substituted judgment” doctrine requires the court to defer to a surrogate decision-maker. Here, the court appointed Betancourt’s daughter as his guardian. Since she wanted to continue life support, the court ordered life support resumed. On appeal, the appellate court dismissed the appeal, holding that “both the lack of an adequate factual record as well as the limited, but unique, factual context presented” warranted dismissal of the appeal as moot. I blogged about this very significant cases here.

(11) In the Matter of Sutton-Logan, Docket No. A-5220-07T3 (App. Div., August 31, 2009) (Court Affirms Appointment Of Ward’s Daughter As Guardian Rather Than Her Husband, Contrary To Statutory Preference)

Ben Logan and Floretta Sutton-Logan were married in 1996, the second marriage for each of them. Both Ben and Floretta had adult children born during their prior marriages. In January 2007, Floretta signed a durable power of attorney and advance medical directive appointed her daughter Karen from her first marriage as her financial and health care agent. Later that year, Floretta suffered a stroke which left her incapacitated and unable to handle her personal and financial affairs. She was admitted to a nursing home. Soon thereafter, Ben filed a lawsuit asserting that Karen improperly took control of Floretta’s property, and denied him input in medical and financial decisions. He sought to enjoin Karen from impeding his access to or transferring Floretta’s real and personal property, and he also sought a financial accounting. In response, Karen filed a verified complaint seeking to be appointed as Floretta’s guardian. After a trial, the court, among other rulings, awarded guardianship of Floretta to Karen. Ben appealed. The Appellate Court affirmed. The Court held that the statute did not mandate the appointment of the spouse as guardian if the best interests of the ward dictated otherwise. My blog post about this case is here.