This was the question addressed by the Superior Court, Appellate Division in a recent New Jersey case.
Eighty-six-year-old Kim was the mother of three children. Her daughter Joy was named as her primary agent under a power of attorney (her other daughter Lori was named as alternate). A conflict developed among the siblings: among other financial claims not addressed here, Lori accused Joy of isolating Kim from her.
Lori arranged for Kim to undergo a competency (“capacity”) evaluation by Dr. Rao. Kim terminated the evaluation at some point after Dr. Rao had begun; however, Dr. Rao completed a report stating that there were “indications” of incapacity, but that further evaluation would be needed to give a definite capacity opinion.
Lori filed a Verified Complaint and sought a court order requiring Kim to undergo a capacity evaluation. The surrogate rejected Lori’s application, and advised Lori to file a standard guardianship application, instructing Lori that two doctors’ certifications were required.
Lori filed a revised application, this time including Dr. Rao’s incomplete report. The judge reviewed this second application, appointed an attorney for Kim, and held an expedited hearing. Kim’s attorney opined that Kim was “absolutely competent” and confirmed that Joy was the person Kim wished to serve as her agent.
The judge denied Lori’s request for “direct access” to Kim, and refused to order Kim to undergo capacity evaluations. Lori appealed.
In New Jersey, filing a court application for guardianship of an alleged incapacitated person (“AIP”) is governed by statutes and Rules of Court. A guardianship application must include affidavits or certifications of two physicians (or one physician and one psychologist) stating their opinion regarding the AIP’s capacity to manage his or her affairs. The court rules also allow a party to request court-ordered evaluations, under very specific circumstances.
The appeals court found that the surrogate had been authorized to reject Lori’s initial application as defective, because it did not contain the required affidavits. It then addressed Lori’s request to compel capacity evaluations. The appeals court noted that, although the court rules allow for court-ordered evaluations under certain circumstances, Lori did not meet the requirements of the court rules. In fact, the appeals court noted that Dr. Rao had been unable to reach a conclusion; that Kim had presented a letter from her own doctor stating that she was competent; and that Kim’s attorney also found Kim to be competent.
On these facts, the appellate court concluded that the trial court had correctly declined to compel capacity evaluations.
A copy of the Superior Court Appellate Division decision in In re K.P can be found here.