Guardianship is an import tool for protecting incapacitated adults who are unable to care for themselves. One role of the guardian is to make or assist an individual with health care decisions, ranging from routine appointments to serious surgical procedures and end-of-life decisions. To ensure guardian accountability in these highly personal decisions, some states like NJ require that court approval for certain critical health care decisions that “implicate . . . the ward’s most fundamental privacy and liberty interests.” These restricted decisions may include placing an individual in a mental health or residential facility, consenting to invasive or experimental procedures, or withholding life-sustaining treatment, as illustrations.
Statutory Restrictions and Case Law on Guardian Authority
New Jersey guardianship statutes generally grant guardians broad authority to make health care decisions for incapacitated persons and contain language similar to the Uniform Guardianship and Protective Proceedings Act (“UGPPA”), which states that a guardian may “consent to medical or other care, treatment, or service for the ward.”
Placement in a mental health facility greatly restricts an individual’s freedom by segregating the individual from mainstream society. Thus, all states require a civil commitment process for involuntary placement in a mental health facility.
NJ law and guardianship statutes follow the UGPPA, which states “a guardian may not initiate the commitment of a ward to a mental health-care institution except in accordance with the State’s procedure for involuntary civil commitment.”
Admission to a Resident Care Facility
Residential care facilities are institutions that provide long-term care in a residential setting, such as nursing homes and assisted living facilities. Like mental health facilities, residential care facilities are restrictive settings that can be very isolating for the individual.
NJ does not require court approval for a guardian to place an incapacitated person in a residential care or nursing facility. But see limitations on this power set forth below.
Consent to Invasive Procedures
Although guardians generally have the authority to consent or withhold consent to medical procedures on behalf of the incapacitated individual, NJ does not have a requirement that certain invasive procedures require extra oversight by the court. These procedures are controversial because of the personal nature of the decision, which involves an individual’s moral, ethical and religious beliefs. Delegating the authority to guardians creates a risk that a guardian might impose the guardian’s own beliefs into the decision-making process. Moreover, these procedures are of additional concern because of the potential negative impact on an individual’s mental health. Therefore, some states require court approval for controversial invasive procedures. Limitations on the guardian’s decisions involving invasive procedures are listed below.
NJ does have provisions restricting the guardian’s ability to consent on behalf of the incapacitated person to one or more invasive procedures, including abortion, sterilization, psychosurgery, or removal of bodily organs. NJ takes a broader approach and prohibits a guardian from consenting to any major elective surgery or non-emergency major medical procedure, without court approval. Most states always require court approval for these invasive procedures; however, seven states make an exception for emergency situations in which the procedure is necessary to preserve life or prevent serious harm.
Consent to Experimental Treatment
The decision to consent to experimental treatment is complex because of the uncertainty involved. Thus, the decision requires a number of important considerations, such as the likelihood of success, possibility of side-effects, availability of other treatment options, and the benefits to science. NJ finds that the decision to consent to experimental treatment requires additional protections.
Consent to Withhold or Withdraw Life-Sustaining Treatment
Decisions to withhold or withdraw life-sustaining treatment are controversial and involve a number of considerations, such the possibility of improved health, relief from suffering, and the individual’s values, moral, and religious beliefs. Consequently, some courts are hesitant to provide guardians with the authority to make such decisions and instead require court approval or proscribe specific standards to use in making the determination.
Involuntary Medical Decisions
New Jersey takes a different approach to restricting a guardian’s authority to make healthcare decisions. Instead of prohibiting the guardian from authorizing specific types of medical decisions, New Jersey requires court approval if the incapacitated person objects to any decision made by the guardian. This approach focuses on the incapacitated individual’s opinion rather than the type of medical decision that needs to be made.
In NJ, medical decisions made by a guardian for an incapacitated person must represent the incapacitated person’s own wishes to the extent possible. Accordingly, “if a ward has previously executed a valid power of attorney for health care or advance directive . . . a guardian of the ward shall act consistent with the terms of such document unless revoked or altered by the court.” N.J.S.A. 3b:12-56(c). However, if no such document was executed, the guardian must still “give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry/” See N.J.S.A. 3B:12-57.
In a packet by the New Jersey Administrative Office of the Courts, it is advised that any guardian making a medical decision on behalf of a person under guardianship must do so “based on the principle of informed consent.” Administrative Office of the Courts, Guardianship of the Person: Duties & Responsibilities, 7 (2017). Therefore, the guardian must “have a clear understanding of the outcomes, risks, and benefits of each alternative” presented to them, determine the implications of their decision, and “maximize the participation of the person [under guardianship] in making the decision.”
When making decisions regarding commitment of an incapacitated person to a psychiatric facility, a guardian may, by court order, initiate the voluntary admission . . . of a ward to a state psychiatric facility . . . or a private psychiatric facility.” N.J.S.A. 3b:12-56. In doing so, “the guardian of the ward shall exercise the ward’s rights in a manner consistent with the wishes of the ward except to the extent that compliance with those wishes would create a significant risk to the health or safety of the ward.” If the ward objects to voluntary admission, New Jersey’s procedures for involuntary commitment will apply.
Any objection by the ward regarding a decision made by their guardian under N.J.S.A. 3b:12-56 may be brought to the “Superior Court, Chancery Division, Probate Part, which may, in its discretion, appoint an attorney or guardian ad litem for the ward, hold a hearing or enter such orders as may be appropriate in the circumstances.” Therefore, “instead of prohibiting the guardian from authorizing specific types of medical decisions, New Jersey requires court approval if the incapacitated person objects to any decision made by the guardian.”
To discuss your NJ guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Guardianship Attorney