“I Care A Lot” – Not!
By Chakeema Cruickshank, Staff Writer
Elder abuse is a common issue across the United States and in New Jersey that needs to be addressed. This abuse can take many forms, whether financial, physical, or emotional. In a vast majority of cases, the abuse comes from family members, as opposed to strangers. For example, research shows that as many as two million elders are abused in the United States. Despite these statistics, many cases are unreported. Furthermore, holes in guardianship law can enable elder abuse.
What is a Guardianship?
Guardianships, also sometimes called conservatorships, are intended to protect those that cannot care for themselves. An “incapacitated person” by definition is unfit and unable to govern himself/herself and to manage his/her affairs. N.J.S.A. 3B:1-2; R. 4:86-2(b)(6). When an individual can no longer care for themselves and make rational or sound decisions in regard to themselves or their property, a guardianship is an option.
However, guardianships are one form of protection that has been abused over the years. For instance, individuals can exploit a guardianship for their own financial and personal gain. This ploy is not uncommon and is depicted in the Netflix series, I Care A Lot. This series centers around a woman who uses the court system to prey on the elderly and financially exploit them through guardianships. She sells their property, places them in nursing homes, and takes their savings.
Although it is a fictional TV series, it highlights the holes in guardianship law than can allow this abuse and exploitation to occur. Guardianship laws vary from state to state. As such, some states have less protections for those in guardianships and individuals may be more susceptible to abuse. In New Jersey, there are certain laws and safeguards in place to help limit this. However, guardianship abuse is still an issue in the state and across the country.
Guardianship Law in New Jersey
In New Jersey, there are many statutes, court rules, and case law that govern guardianships. The process of deciding if a person has mental competency and the appointment of a guardian is governed by statute, (N.J.S.3B:12-1 et. seq.) and New Jersey Court Rules (Rule 4:86 et. seq.). The law presumes that all people can make their own decisions and control their personal rights, unless a court determines otherwise.
Guardianships are created by the courts. To obtain a guardianship, a complaint must be filed with the Superior Court. These complaints are very detailed. They include affidavits and examinations from two physicians on the condition of the alleged incapacitated person. From there, a hearing date is set. The court will appoint an attorney to represent the individual. During the hearing, all parties are heard and the alleged incapacitated person will be given the right to obtain counsel of his or her own choosing if desired.
If the guardianship is disputed at the hearing, there will be a full trial to determine whether a guardianship should be granted. The law says that the basic test of mental competency is whether the mind of the individual is unsound to such an extent as to render him/her incapable of governing himself and managing his affairs. N.J.S.A. § 3B:1-1, 3B:1-2. If a person becomes incapable of making responsible decisions due to a mental illness or disability, a court has the power to appoint a substitute decision maker, a “guardian”, making the incapacitated person, a “ward”.
Memory loss and decay of the mind do not automatically justify a finding that a person is incapacitated. To warrant such a finding, there must be clear and convincing evidence that this person cannot reasonably care for themselves. If the guardianship is granted, a court order is issued. The court must then independently determine whom to appoint as guardian. In making this decision, the court considers the recommendations of professionals and the wishes of the incapacitated person, if they are expressed.
In New Jersey, the Order of Guardianship requires the court-appointed guardian to post a bond for the amount of the incapacitated person’s assets. This is one protection in the state against financial exploitation. Furthermore, property and real estate cannot be sold by a guardian without the express permission of the court. This can be a potential safeguard as many people abuse guardianships by selling a ward’s property for profit.
In addition, the guardian is required to file an inventory of the ward’s personal belongings and assets. Along with finances, it is required that well-being reports are filed with the County Surrogate for oversight. It is important to note that these reports are audited by volunteers.
While the guardianship process in NJ addresses many of the shortcomings and holes in guardianship law, there is still some room for improvement. For example, as stated, the oversight is done by volunteers. As such, there could be more support given to the program. Lastly, there is currently no funding authorized by the legislature. Therefore, it can be more difficult for oversight in more populated counties.
How can Elder and Guardianship Abuse be addressed by law?
New Jersey has multiple laws that are targeted at elder abuse and financial exploitation. One of the main laws is the Prevention of Domestic Violence Act. This Act provides protections to victims of domestic violence. A victim of domestic violence is defined as a person over the age of 18, who is abused by a spouse, a person with whom the victim has a child in common, any former or present household member, or a person with whom the victim has had a dating relationship.
Under this definition, elders can be protected under domestic violence law against household members, which can include blood and non-blood relatives. As the definition is quite broad, this Act can provide protections to elders who are abused by family members or caretakers. That can include physical, emotional and financial abuse/exploitation.
Guardianships are meant to help and protect those that cannot care for themselves, not imprison or control others. Since guardianships strip an individual of their rights and liberties, they should only be considered as a last resort. As seen, holes in the guardianship system can enable exploitation and elder abuse. It is important to be aware of the signs of elder abuse to help combat it.
Staff Writer Chakeema Cruickshank is currently a first year at Rutgers Law School Camden. Prior to Rutgers Law, she worked for United States Senator Robert Menendez doing constituent relations and outreach for education, environment, and technology.