Restoration of Capacity?

Restoration of Capacity

If an individual is determined unable to make her own decisions, a judgment of incapacitation and awarding guardianship may issue.

Sometimes, the conditions which led to a judgment of incapacitation are not permanent. In this case, the subject of the guardianship order may seek an order restoring her to legal capacity, which would allow her to resume making decisions for herself.

In the Matter of the Guardianship and Conservatorship of Lois Crist, No. 118-973 (Ct. App. Kansas, February 1, 2019)(per curiam), an 82 year old widow residing in a rural home requested an order restoring her to capacity.   At the time of the original impairment order, the ward’s home was uninhabitable due to mold and clutter, and she was dirty and unkempt, and suffering from a gait dysfunction, a vitamin B-12 deficiency, and a urinary tract infection.  She was removed from her home, adjudicated impaired, hospitalized, discharged to a nursing home, and then to assisted living, where she thrived. The total value of her estate was over $1.4 million.

Nearly two years after the original hearing, the ward had a falling out with her family and filed a petition for restoration. She argued that her impairment was temporary and attributable to an altered mental state from a urinary tract infection. She was evaluated several times, with disparate results, but two tests determined that she was unable to drive or to manage her housekeeping independently.

The trial court declined to restore her legal capacity for decision-making in part because her answers to the court’s questions regarding how she would live independently in a rural setting were unrealistic.

While we will never know all the facts, it is quite possible that with effective representation and thorough preparation, the petitioner might have been better prepared to anticipate and effectively answer the court’s questions and she might have successfully obtained a restoration of capacity order.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.

Support for New Jersey’s Unpaid Caregivers

Support for New Jersey’s Unpaid Caregivers

Caregiving, done well, can be the ultimate act of service and potentially a game-changer, enabling an elderly or functionally disabled individual to remain at home surrounded by their family, friends and happy memories.

However noble and important, caregiving often imposes a heavy financial, physical and emotional toll on unpaid caregivers, who statistically face a higher incidence of missed time from work, loss of employment, and of developing adverse emotional conditions such as anxiety, depression, and burn out, adverse health conditions and even physical injury.

The value of self-care on the part of the caregiver is essential. At a minimum, caregivers should take regular breaks, get physical exercise, maintain good nutrition and get plenty of rest, which is often easier said than done. With the number of elderly and disabled individuals reliant on care from unpaid caregivers projected to double by 2020, unpaid caregivers will face unprecedented challenges.

The state of New Jersey has taken up the challenge of supporting caregivers with recently enacted Public Law 2018, c166. Passed by the New Jersey legislature and signed by Acting Governor Sheila Oliver on December 28, 2018, the new law establishes the New Jersey Caregiver Task Force. The purpose of the task force is to evaluate existing supports for New Jersey caregivers and to develop recommendations for the improvement and expansion of caregiver support services within our state. The task force will take testimony from caregivers regarding the care duties performed, the sufficiency of caregiver training programs, the costs which caregivers face and their own personal caregiving experiences.  The task force will prepare a report with recommendations for new laws and regulatory or program changes to improve, expand and supplement existing caregiver support programs and systems within the state.

New Jersey’s new focus on caregivers is not unprecedented. In 2017, the state of Hawaii passed the Kapuna Care Act, which established the Kapuna Caregivers Assistance program to provide family caregivers who work with resources to help pay for care services for elderly individuals over age sixty residing in the community and requiring assistance with at least two activities of daily living or having substantial cognitive impairment.  Under the Hawaiian model, cash payments are available to help working caregivers defray some care-related costs.

At the federal level, the RAISE Family Caregivers Act was signed into law on January 8, 2018, and directs the Department of Health and Human Services to develop, maintain and update a National Family Caregiving Strategy and to convene a Family Caregiving Advisory Council. The Act defines family caregivers as adult family members or other individual having a “… significant relationship with” and providing “a broad range of assistance to an individual with a chronic or other health condition, disability or functional limitation.” The bill is designed to specify recommended actions which can be undertaken by federal, state, and local governments, communities, health care providers, and long term services and supports to assist family caregivers.

Questions? Let Jane know.

Jane Fearn-Zimmer is a shareholder in the Elder and Disability LawTaxation, and Trusts and Estates Groups. She dedicates her practice to serving clients in the areas of elder and disability law, special needs planning, asset protection, tax and estate planning and estate administration. She also serves as Chair of the Elder & Disability Law section of the NJSBA.