An Enduring Challenge: Competency and the Dueling Powers of Attorney

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship & Elder Care Attorney

A resident was place in an assisted living memory locked unit by his son. He (the resident) has a girlfriend of long standing (10 years). The son has told the management of the facility that the girlfriend is not permitted to visit with the resident.

In response, the girlfriend contacted the Ombudsman’s office and was told that the son had the authority under the father’s Power of Attorney (DPOA). My understanding from the Director of the facility is that the Ombudsman is currently investigating the situation and until they complete their review, they are allowing the son’s decision based on the DPOA to stand for the time being. I have not seen the document.

The resident was placed in assisted living after a short stay at a Psychiatric Hospital because of an altercation at a prior nursing home. I’m not sure of the resident’s mental capacity. I suspect he had a drinking problem that is causing his present cognitive issues. The resident is capable of arguing politics and defending his decision. He is repetitive but articulate and remembered why he called me. He told me that I should tell the front desk that I am his attorney or they will not let me in. The resident never wanted placement in any facility and I think his behavior reflects that.

Unless I get a capacity examination on him (which he is currently refusing), I don’t think he can support revoking the DPOA. If the resident revokes the DPOA without proof of capacity, it would force the son to file for a guardianship, which he could do even if I had a doctor’s report that found capacity. He has repeatedly asked his son for his financial records and the son has not provided them. He is angry that his girlfriend isn’t permitted to visit with him. Does the girlfriend have any legal recourse?

In a reported decision (The matter of the Estate of Ann F. McNierny, an Adjudicated Incapacitated Person, 2010 N.J. Super. (Ch. Div. 2010) the Superior Court of New Jersey, Chancery Division held that a court appointed guardian had the authority to control the visitation rights of an incapacitated person.

In the McNierny decision the plaintiff was adjudicated an incapacitated person, and 2 of her 5 children were appointed as co-guardians. She was admitted to an assisted living facility. A son, would often visit mom at the facility. These visits became a problem, as mom became upset every time that her son would visit. In order to keep these issues at a minimum, the co-guardians set out a supervised visitation schedule for the son’s visits. The son totally disregarded this visitation schedule. As a result, the co-guardians asked the facility to deny him access. The son filed a complaint with the Office of the Ombudsman for Institutionalized Elderly. The investigator found that the mom welcomed visits from her son and that his visits were not disruptive. The investigator further concluded that the co-guardians lacked authority to deny the son access to the mother.

The co-guardians filed a complaint in Chancery Court, claiming that they had the requisite authority to control the visitation rights of mom.

Under New Jersey law general guardian has the right to exercise powers of the incapacitated person except as limited by a judgement. N.J.S.A. 3B:12-24.1; N.J.S.A. 3B:12-48. There were no limitations placed on the co-guardians in this case. The co-guardians had the authority to make all decisions on behalf of their ward, but must defer to the ward’s preferences if not contrary to the ward’s best interest. This right of self-determination must be balanced against the ward’s best interests.

The Court held that, as a general proposition, guardians have the authority to exercise their discretion in denying visitation rights. The Court also found that the Office of the Ombudsman for Institutionalized Elderly unreasonably interfered with that authority. In the event a party is aggrieved by their decision, he or she has the right to seek redress in Chancery Court.

So what is to be done? On thought is to assume an adult has legal capacity until demonstrated otherwise.

If legal council meets with the resident and believes that the client has capacity, he may revoke the DPOA and sign a new one appointing the girlfriend. Sure, it would be nice to have a capacity evaluation by a medical professional to substantiate his/her legal determination. However, I do not believe that such a report is always necessary in order for a person to revoke an existing DPOA if you have made that legal determination upon interviewing a client that he/she has capacity to sign a new POA.

But realize that doing so it will likely result in a guardianship application.

I also do not always agree (with the Ombudsman) that a DPOA has the authority to prevent visitation by the girlfriend if the Resident is saying that he wants to see her. A POA serves at the pleasure of the appointing individuals as his “agent” and has an obligation to follow the instructions of the appointing individual.

Comparatively, the guardian (once appointed) has “substituted judgement” and can control visitation (subject to the expressed preferences of the ward and any carve outs in authority granted to the guardian in the judgment).

To discuss your NJ Guardianship & Elder Care matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

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