KIYC: Advocates say New Jersey needs to reform how its guardianship program functions
More than 36,000 New Jersey residents are living under court-appointed guardianships. They are unable to make decisions or access their money. Some advocates say the system needs to be reformed to make it easier for them to have their rights restored.
Elberta Cohen, 80, has no access to her life savings. Her life is in the hands of a stranger, a guardian appointed by a judge. She says she isn’t happy about it.
“What gives them a right to do this to anybody?” Cohen asks rhetorically. “I'm not incapacitated.”
In the eyes of the law, she is. Kane In Your Corner first investigated Cohen’s case last month. A judge placed her under the care of a guardian after her youngest son argued she was no longer able to make decisions on her own. She says that she and her son aren’t even on speaking terms, and he was just trying to get her declared incapacitated to prevent her from revising her will. Eldercare attorney Lauren Marinaro is now representing Cohen in her effort to get her rights restored.
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Terminating a guardianship is no easy task. New Jersey has no clear standard to determine if a person lacks capacity. Judges decide each case individually.
Cohen was initially evaluated by three doctors. One said she could make decisions for herself, but the other two disagreed. The judge went along with the majority.
But Marinaro has now gotten two more medical experts to weigh in. Both say Cohen is capable of making decisions on her own. Cohen’s personal physician also writes that Cohen’s “memory and judgment are intact.” The majority of experts are now squarely on her side.
Cohen’s motion to restore her rights is also unopposed – her son chose not to dispute it and her current guardian says he takes no position as to whether the guardianship should be continued. But ending the guardianship, or even relaxing it, is still not a sure thing. The judge has sole discretion under the law.
Marcia Southwick, executive director of the National Association to Stop Guardianship Abuse, says the system needs to be reformed to make terminating a guardianship easier.
“They should always have to prove that you're still incapacitated,” she says. “Instead, you have to go to court and you or your lawyer have to prove that you're not. And if you weren't in the first place, that just seems so unfair to me.”
Pam Teaster, director of the Center for Gerontology at Virginia Tech, argues courts should always view guardianship as a last resort. “If there's anything else that could be done for that individual, other than a guardianship, that's what should be happening,” she says.
New Jersey Assembly Member Carol Murphy (D – Cinnaminson) agrees. She wrote a bill that would require courts that impose guardianships to always use the “least restrictive option.” But two years later, Murphy’s bill has still not come up for a vote.
Teaster argues that another reform could help people like Elberta Cohen. While the guardianship process is currently shrouded in confidentiality, she is calling for a public database of guardianship cases that would help evaluate how well or poorly the system is working.
Peter McAleer, spokesperson for the New Jersey courts, says the judiciary is constantly trying to improve the system, including making it easier for people to challenge their guardianships.
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