KIYC: Thousands of NJ residents are in court-ordered guardianships. Some fight to get rights back
More than 36,000 people in New Jersey live under court-ordered guardianships, essentially losing many or most of their rights, a Kane In Your Corner investigation finds. Some say the guardianships were unnecessary and imposed against their will. But terminating a guardianship can be difficult and costly.
Elberta Cohen, 80, can remember the details of every trip she and her late husband took. Her family room is filled with photos and souvenirs of their travels.
“This, of course, is Russia,” Cohen says, gesturing to a framed photo. “That’s St. Petersburg. I loved it, absolutely loved it.”
Cohen also enjoys playing Scrabble and can talk at length about current events like the war in Ukraine. But she has no access to her money and can’t make major life decisions. Those are in the hands of a stranger, a guardian appointed after a judge ruled her “totally incapacitated.”
“I went to the dentist the other day and I had to explain, ‘The money is there. I'll get it to you.’” Cohen recalls. “Do you know how embarrassing that is?”
New Jersey has no diagnostic standards to determine if a person lacks capacity, according to state judiciary spokesperson, Peter McAleer. Instead, it “requires courts to determine the functional capacity of the individual, regardless of their diagnosis.” In other words, if a judge says someone needs a guardian, then they do.
The National Association to Stop Guardianship Abuse says guardianships may be necessary in some cases, but are too easily abused, given the consequences. “The person in a guardianship has no right to choose where to live, who to associate with. They have no control over their money,” says NASGA director Marcia Southwick.
Cohen lost her rights after her youngest son, Robert, petitioned for guardianship. She says he did it to stop her from changing her will, after “I told him he wasn't gonna get any money.” Robert Cohen insists the will had nothing to do with it. He says his mother’s “thoughts can be scattered at times. Other times, she can be coherent.”
Elberta says she’s “not incapacitated in any way, shape or form,” and that one of New Jersey’s top eldercare attorneys, Lauren Marinaro, has agreed to represent her.
“I believe she is competent to make decisions and should be restored to capacity,” Marinaro says.
But Southwick says terminating a guardianship can be costly.
“The lawyer for the guardian can charge your estate to fight back,” Southwick says. “So basically, you're being held captive while people are just charging your estate. It's as if you’ve become a cash cow.”
As in most guardianship cases, Elberta was evaluated by three doctors. One found she could “manage her medical, financial and legal affairs.” But the others disagreed.
Faced with the conflicting reports, the judge ordered a full or “plenary” guardianship, covering not just Cohen’s estate but also her “person.” Since she began representing Cohen, Marinaro has gotten two more doctors to do evaluations. All found her capable of making decisions on her own. Notes from Cohen’s primary care physician also indicate no impairments. Marinaro says the lack of a diagnostic standard can make evaluations. All found her capable of making decisions on her own. Marinaro says the lack of a diagnostic standard can make evaluations subjective, and “only the people giving the test know how to how to grade the quiz.”
The subjectivity also extends to opinions of Cohen’s living conditions. The guardianship petition claimed the house was “very filthy” and so cluttered that it was “unsafe” for Cohen to walk. But Kane In Your Corner visited the house more than once, and never saw that. Footage shows the house is clean, and while there is some clutter, like a dining room table that is largely covered by books and knick-knacks, it does not create an impediment to walking around.
“You don't have to have a perfectly clean house every day to be an adult with the ability to do your own thing,” Marinaro says. “You're still an adult, and you still have fundamental rights.”
Elberta admits her life isn’t perfect. She lives with her oldest son Larry. She says she and Larry argue at times, sometimes loudly. But she says, “I don‘t want to be taken care of by a stranger” and disputes Robert’s contention that Larry “is controlling her life.” So when the guardian sought to have Larry evicted and replaced by a full-time aide earlier this year, Elberta was furious, especially since the filing openly stated the aide would likely be temporary and serve as a “transition to assisted living.”
“He was going to go and make me sell my home and put me in a nursing home,” Elberta says indignantly. “I feel it’s my home. I'm entitled to live where I want to live.”
Cohen’s case is scheduled to go to a court hearing next month.
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