In the Matter of T.S., an Alleged Incapacitated Person: NJ Court Dismisses Contested Guardianship Lawsuit filed by Adult Child, ruling Parent, though aged and suffering from Parkinson’s disease, to be Competent

For more than two years, I represented T.S., or “Tom,” an elderly man suffering from Parkinson’s disease and diabetes, in a contested guardianship action. Tom’s son claimed that Tom was incapacitated, and needed a guardidan to act in his best interests. Tom’s son instituted a guardianship action in the Superior Court of New Jersey, Union County, in November of 2007. I opposed that guardianship action on Tom’s behalf. Tom maintained that he was competent and that his son was pursuing the action because he wanted control over Tom’s assets. Based upon my experience with him for years, Tom was competent.

After more than two years of litigation, and eight days of trial that spanned from March to December of 2009, Hon. John F. Malone, P.J.Ch., issued an opinion on May 11, 2010, ruling in Tom’s favor and dismissing his son’s guardianship complaint.

Judge Malone found that Tom’s son failed to meet his burden of demonstrating that Tom was incapacitated; instead, Judge Malone declared that Tom was “logical, coherent and has good clarity of thought. [He] functions cognitively; he is lucid, alert, he can understand, communicate and remember information.”

In denying the son’s application for guardianship, the judge ruled as follows:

The court may appoint a guardian of the person, estate or both under N.J.S.A. 3B:12-24.1, if it is proven that an individual is incapacitated…. The basic test of mental competency is whether the mind of the individual is unsound to such an extent as to render him incapable of governing himself and managing his affairs. N.J.S.A. 3B:1-1; 3B:1-2. Mere failure of memory, decay and feebleness of the intellectual faculties are not evidence of that degree of unsoundness of mind that will justify a finding a person incapacitated…. Moreover, “the burden of demonstrating that an individual is incompetent requires proof that is clear and convincing.” In re Goldemberg, 2006 WL 337083 (N.J. Super. Ch.), citing In re Grady, 85 N.J. 235, 265…. In the case at bar, the Petitioner has failed to demonstrate its case to a clear and convincing standard showing that [the alleged incapacitated person] has an impaired ability to govern himself and manage his affairs pursuant to N.J.S.A. 3B:1-2. …

In making his decision, Judge Malone recognized that the fundamental rights guaranteed to all competent people are lost upon a declaration of incapacity and, because the gravity of that loss, proving incapacity is a heavy burden placed on the person making the claim of incapacity:

“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty… and of pursuing and obtaining safety and happiness.” N.J. Const. Art. 1, 1. Unless they endanger themselves or others, competent people ordinarily can choose what they want, even if their choices are irrational or dangerous. In re M.R., 135 N.J. 155 (1994). Further, competent persons enjoy the right to determine treatment alternatives, including the termination of medical treatment. Id. The Supreme Court of New Jersey has held that the right to self-determination is a fundamental right. Matter of M.R., supra,… thus, the burden of proof must fall to the challenger of that right. Id. at 166, 169.

Tom’s son had argued that sometimes his father had made imprudent financial and medical decisions, such as allowing a caregiver/companion to move into his house with her family; making gifts to the caregiver/companion, and checking himself out of a rehabilitation facility after an injury, against medical advice. The son argued that these decisions were evidence that Tom could no longer properly handle his affairs. The court disagreed, finding that:

Although [the father’s] spending habits are not consistent with his long-held patterns of spending, eccentricity cannot be confused with diminished capacity. [The father] 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 through non-traditional means by moving [the caregiver/companion] and her three children into his home. [He] wants to reside in his home and he is able to do so with the help of [the caregiver/companion]. Though there are more qualified caregivers available, [he] has chosen [her] to assist him in the home. It is [his] fundamental right to make such choices because he is a competent person.

The Court’s written opinion is annexed hereto – Judge Malone’s Decision in the T.S. case

The judgment entered by the Court dismissing the case is annexed hereto – T.S. – Judgment of Dismissal