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Sunday, April 27, 2014


SERVICES A-5798-11T1  1/23/14  
In this appeal, we address an institutionalized Medicaid recipient's ability to shelter income for his non- institutionalized spouse. Here, the institutionalized petitioner appeals from a final agency decision of the Division of Medical Assistance and Health Services (Division) finding that the community spouse monthly income allowance (CSMIA) for his wife, D.S., should be calculated in accordance with 42 U.S.C.A. § 1396r-5(e)(2)(B) and N.J.A.C. 10:71-5.7(e), rather than pursuant to a Family Part separate maintenance order, which gave petitioner's spouse substantially more money per month than the amount calculated according to the CSMIA. Following our review, we conclude the Division, when determining the institutionalized spouse's obligation for his nursing home care, is not bound to abide by the terms of the separate maintenance order, entered in a non-contested proceeding, without notice to the Division, because the Order was designed to circumvent the regulations governing the CSMIA. We affirm the Division's decision. 

Saturday, April 05, 2014

Guardianship met by clear and convincing evidence

Guardianship met by clear and convincing evidence
February 6, 2014

Submitted November 18, 2013 – Decided

Before Judges Parrillo and Kennedy.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. P-317-11.

(NOTE: The status of this decision is Unpublished.)

DOCKET NO. A-5108-11T4

This appeal arises from guardianship proceedings brought on behalf of Florence Fisher (Florence), eighty-nine years of age and suffering from Alzheimer's Disease and dementia. Florence has three daughters: Judith Furer (Judith), Meredith A. Fisher (Meredith), and Lesley Greenblatt (Lesley).1 Judith filed a verified complaint in the Chancery Division to declare Florence incapacitated and appoint herself and Lesley as co-guardians. Meredith opposed the relief sought, but the court entered judgment of incapacity and appointed Judith and Lesley as co-guardians for Florence. Meredith moved unsuccessfully for reconsideration and now appeals. After carefully reviewing the record, we affirm essentially for the reasons set forth by Judge Peter E. Doyne in his opinions on the record.
We will not recite in detail the procedural and factual background of this litigation. Instead, we incorporate by reference the factual findings and legal conclusions contained in Judge Doyne's lengthy decisions rendered from the bench. We add the following brief comments.
We are satisfied that, commencing with the filing of the verified complaint on August 19, 2011, and continuing through the entry of judgment on February 22, 2012, and the denial of reconsideration on May 9, 2012, Meredith was accorded every appropriate consideration by Judge Doyne in pressing her objections to the relief sought in the verified complaint. Indeed, Judge Doyne observed that Meredith routinely sought adjournments, and that, as of the date of the hearing,
this court has seen nothing which suggests that further adjourning this matter is in Florence's best interest. . . . [I]t is Florence's best interest that guides this court, not whether Meredith is being treated fairly [by her mother or others]. As such, this court shall not adjourn the matter.

Judge Doyne had appointed a guardian ad litem for Florence shortly after the verified complaint was filed, Gerald Salerno, Esq., and all parties, except Meredith, were prepared to proceed.
Florence was born in 1925, and is a widower with three adult daughters, as noted earlier. She now suffers from Alzheimer's Disease and dementia. At the time of the complaint, Florence resided at an assisted living facility located in Teaneck, New Jersey. Plaintiff and respondent hold a general Durable Power of Attorney from Florence dated April 28, 2009.
Expert psychiatric reports, by Dr. Jagdish C. Dang, M.D., and Dr. Joel S. Federbush, M.D., were submitted with the verified complaint. Dr. Dang opined that Florence "does not have capacity to take care of herself and is not fit or able to govern herself, and to manage her affairs" and that she has "Alzheimer's Dementia and Depressive disorder." In his report, Dr. Dang expressed concern about her cognitive difficulties, poor executive functions, and possibility of exploitation and coercion. Further, he opined that Florence "cannot comprehend the extent of her financial, medical and legal situation, and cannot make rational decisions. She needs a guardian appointed."
Similarly, Dr. Federbush diagnosed Florence as
suffer[ing] from a diagnosis of Dementia – probably Alzheimer's type which has resulted in significant chronic functional impairment to such a degree that she lacks the cognitive capacity (i) to comprehend concepts relating to her person care, her health and medical needs (and her property, if applicable), (ii) to evaluate information and make judgments with respect thereto; and (iii) to communicated judgments thereon, all of which jeopardize her health, safety and well-being. Her prognosis is poor.

He also expressed concern about her "cognitive impairments" and "vulnerability to exploitation[,]" and concluded that Florence was "unfit and unable to govern herself and manage her own affairs, and that she is in need of a guardian."
Mr. Salerno, the guardian ad litem for Florence, stated in his report to the court:
Florence is unable to govern herself and to manage her own affairs. . . . It is obvious in meeting with her and speaking to her that she does have an understanding of certain matters and wishes to maintain some degree in autonomy and say in her affairs, and I believe that [Judith] and Lesley will continue to elicit her input for as long as she is capable of providing input.

. . . .

I do recommend that [Judith] and Lesley are appropriate and suitable to be appointed as the Co-Guardians of the Person and Property of Florence Fisher. They have effectively functioned in this role for the past few years and I do not believe that much will change as a result of the formality of this adjudication. Furthermore, this appointment is consistent with Florence's wishes and the Durable Power of Attorney she executed in 2009.

Mr. Salerno met with Florence a second time, after Meredith expressed some concerns about Florence and her relationship with the three daughters. He noted that "Florence ha[d] become even more forgetful and in particular had difficulty recalling certain immediate details that [they] had just discussed." However, he did not alter his recommendations from his initial report, because "the passage of additional time and the events that have transpired since [his] initial report to the [c]ourt confirm in [his] mind the fact that Florence is unable and unfit to govern herself and manage her own affairs with respect to legal matters, finances and medical decisions."
Judge Doyne ultimately determined that Florence was legally incapacitated and appointed Judith and Lesley as co-guardians and stated, in part:
It is clear beyond [per]adventure that a guardian is needed in this matter. The incapacity has been demonstrated and there is no competent contravention of same. The only assertions that Florence is not incapacitated are made by Meredith. There is absolutely no support for the same. In fact, in more than one letter authored by Meredith to the [c]ourt she describes her mother as suffering from dementia. . . . [W]hat should have been a relatively straightforward incapacity matter has been sidetracked due to Meredith's concerns for monies she receives and that her daughter's [sic] received.

. . . .

[This] is a hearing to address Florence's needs and what is in the best interest of Florence. Separate and apart from the [confidence] [sic] this court has in [Mr.] Salerno, there is no competent evidence before this [c]ourt whatsoever which would suggest that Judith and Lesley should not be appointed as co-guardians. As such, they shall be appointed as co-guardians.

Judge Doyne carefully reviewed the evidence presented, and thereafter concluded that Judith and Lesley had met by clear and convincing evidence all the legal requirements for a judgment of incapacity and the appointment of a guardian. See N.J.S.A. 3B:12-24 to -29; In re Guardianship of Macak, 377 N.J. Super. 167, 175-76 (App. Div. 2005). A person is incapacitated if (s)he "is impaired by reason of mental illness or intellectual disability to the extent that [she] lacks sufficient capacity to govern [her]self and manage [her] affairs." N.J.S.A. 3B:1-2. Judge Doyne's opinion is supported by adequate, substantial, credible evidence, Cesare v. Cesare154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co.65 N.J. 474, 484 (1974)), and therefore may not be disturbed on appeal.
Finally, Judge Doyne did not abuse his discretion in denying reconsideration. Fusco v. Newark Bd. of Educ.349 N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts & Merrill303 N.J. Super. 61, 77 (App. Div. 1997); Cummings v. Bahr295 N.J. Super. 374, 389 (App. Div. 1996). The remainder of Meredith's arguments on appeal are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).
1  We refer to the parties by their first names to avoid confusion. We mean no disrespect.

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