In the Matter of the Estate of Ann F. McNierney, Docket No. BER-P-89-10, Ch. Div. Bergen Cty. (Doyne, A.J.S.C.), Judge Peter E. Doyne, A.J.S.C., a trial judge in Bergen County, issued a 39 page unpublished opinion in which he discussed the scope of authority of plenary guardians to control the visitation rights of their ward.

Ann F. McNierney is a 78 year old widow suffering from dementia with 5 adult children. In 2006, Ann was declared to be an incapacitated person (IP) in need of a guardian to handle both her personal and financial affairs. Two of her five children, Edward and Mary Ellen, were appointed by the court as co-guardians.

Thereafter, the IP was admitted to an assisted living facility (ALF). After the IP’s admission, the co-guardians received numerous reports from the ALF staff indicating that the IP became agitated and upset during after visits from another adult child, Patrick. In response, the co-guardians first established a visitation schedule, restricting Patrick’s visitation privileges. After Patrick ignored the schedule and additional problems occurred, the co-guardians prohibited Patrick from visiting the IP.

Patrick filed a complaint with NJ’s Office of the Ombudsman for the Institutionalized Elderly (OOIE), stating that the co-guardians were improperly restricting the IP’s right to visitors of her own choosing by instructing the ALF to prohibit Patrick from visiting the IP. Thereafter, the OOIE conducted an investigation. Concluding that the co-guardians lacked the authority to restrict the ward’s visitors, the OOIE allowed Patrick to have supervised visits with the IP for 60 days. After 60 days had past, the OOIE permitted the IP to have unrestricted visits with Patrick.

The co-guardians contacted the Division of Elder Advocacy at the Department of the Public Advocate about the OOIE’s decision. The Director of the Division agreed with the findings of the OOIE that plenary guardians lack the authority to make decisions regarding the visitation rights of their ward and indicated that the co-guardians would have to apply to the court to restrict Patrick’s visitation of the IP.

On March 8, 2010, the co-guardians filed a complaint, asking the court to declare whether a plenary guardian has the authority to make decision regarding visitation, to ascertain if the co-guardians must defer to the OOIE’s decision. The court issued its opinion on June 21, 2010.

The court began its analysis by reviewing each law governing the authority granted to plenary guardians like plaintiffs, discussing the controlling statutes, the Patient’s Bill of Rights law, the Manual for Guardians issued by the NJ Supreme Court, the laws governing the OOIE, and the Health Care Facilities Planning Act. The court then ruled that, under the guardianship statutes, particularly N.J.S.A. 3B:12-48, a plenary guardian has “all the powers conferred upon the guardian by the law and the provisions of this chapter except as limited by judgment.” Since the judgment obtained in this case provided no limit to the co-guardians’ authority, the co-guardians are authorized to make all decisions pertaining to the ward’s personal and financial affairs, including the authority to “control, monitor and schedule visitation with the incapacitated consistent with N.J.S.A. 3B:12-57.” The Court held that anyone, such as Patrick, who disagreed with a plenary guardian’s decisions had to seek the intervention of the court to remove the guardian.

The court also ruled that the OOIE lacked jurisdiction in this case since there was no allegation of abuse of an elder by an institution. By acting beyond the scope of its authority in restricting the autonomy of the co-guardians not previously limited by the court, the “agency’s actions created disorder in the realm of guardianships by attempting to act in an unauthorized jural manner.”

The case is annexed here – In the Matter of the Estate of Ann F. McNierney

UPDATED ON DECEMBER 20, 2011: In my June 26, 2010 blogpost entitled “New Jersey Court Rules That Plenary Guardians Can Control The Visitation Rights Of Their Ward,” I discussed Judge Doyne’s decision in the case of In the Matter of Ann F. McNierney.

I have since received a copy of an unpublished order issued following that decision, in which Judge Doyne denies a reconsideration motion filed by the Office of the Ombudsman for the Institutionalized Elderly (“OOIE”). In denying the OOIE’s reconsideration motion, the court reaffirmed its earlier ruling that “the OOIE should … not attempt to override its authority by issuing its own mandates” to long-term care facilities not to follow a guardian’s instructions. Instead, the OOIE should “seek the relief of the court where its opinions differ from those of the court appointed guardian.”

A copy of that September 14, 2010 Order, with an annexed opinion entitled “Rider,” can be found here – Order and Decision on Reconsideration – In the Matter of Ann F. McNierney