A New Jersey appellate court ruled that a person who is incapacitated may still be able to express a preference as to his or her choice of a guardian or place of residence, both of which are entitled to consideration by the court. Matter of the Guardianship of Walter J. Macak, 377 N.J. Super. 167 (App.Div. 2005)

Mr. Macak’s daughter filed a complaint seeking the appointment of a guardian for her father based on her claim that he was incapacitated. The impetus for the complaint was her concern that Mr. Macak had Alzheimer’s disease, was unable to manage his finances, and was falling prey to financial “scam artists.” Mr. Macak directed his attorney to oppose the guardianship application and specifically indicated that, if he was declared incapacitated, he was opposed to having his daughter appointed as his guardian.

Mr. Macak’s attorney negotiated a “settlement” under which she signed a consent order declaring Mr. Macak to be incapacitated, appointing an attorney as his guardian, and providing that the guardian could continue Mr. Macak’s “gifting program” of giving his daughter $ 18,000 per year.

Mr. Macak sought to set aside the guardianship, claiming he had signed the guardianship “agreement” under duress, and that he was not incapacitated but only needed assistance in managing his finances. He therefore asked the court to appoint a conservator. The court denied the application to set aside the guardianship, and Mr. Macak appealed. The appeals court reversed and remanded the case for a plenary hearing. The court found that the trial court erred when, without holding a hearing, it accepted a “settlement” in which the allegedly incapacitated person agreed to be declared incapacitated:

An incapacitated person cannot enter into a consent order declaring him to be incapacitated nor can he consent to the appointment of a plenary guardian. An incapacitated person by definition “is unfit and unable to govern himself or herself and to manage his or her affairs,” and hence cannot “settle” a guardianship action in such a fashion. … Further, as this case illustrates, the potential for overreaching and undue influence is unacceptably high.

The appellate court also ruled that, if the ward retained sufficient capacity express a preference, the trial judge should give due consideration to the wishes of the incapacitated person in deciding (1) who to appoint as guardian, and (2) where the ward shall live:

If the court finds that a person is incapacitated, the court must then determine whom to appoint as guardian. In making that determination, the court should consider … the wishes of the incapacitated person, if expressed. A person who is incapacitated may nonetheless still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court. … [Moreover], a person who is incapacitated in some respects may nonetheless have sufficient capacity to make a choice as to where he wishes to live, and if he does, the guardianship should be limited to allow him to make the choice.

However, the appeals court also held that the wishes of the incapacitated person, even if expressed, are not controlling unless the expressed preferences are rational:

In determining whether the person in fact has the capacity to choose where he will live, the court must differentiate between “glimmerings of rationality,” and the medically-documented ability to make a rational choice on the issue. The ability to express a preference is not necessarily the same as the ability to make a rational choice. Where the choice of residence presents safety risks, for example, the court must consider whether the person can recognize and appreciate the potential risks presented by the choice, and whether he can and will take reasonable steps to mitigate those risks. For example, a person who does not have the capacity to live alone in his own house might recognize the attendant risks and be willing to accept twenty-four hour a day, live-in assistance.

The case is annexed here – Matter of the Guardianship of Walter J. Macak

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