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Sunday, April 27, 2014

Court finds by the petitioners met by clear and convincing evidence all the legal requirements for a judgment of incapacity and the appointment of a guardian IN THE MATTER OF FLORENCE FISHER, AN INCAPACITATED PERSON.

Court finds by the petitioners met by clear and convincing evidence all the legal requirements for a judgment of incapacity and the appointment of a guardian IN THE MATTER OF FLORENCE FISHER,
AN INCAPACITATED PERSON.
« Citation
Data


SUPERI
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5108-11T4
IN THE MATTER OF FLORENCE FISHER,
AN INCAPACITATED PERSON.
__________________________________
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.

OT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION


PER CURIAM

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).
certify
Affirmed.
1  We refer to the parties by their first names to avoid confusion. We mean no disrespect.


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Thursday, April 24, 2014

26:6-89 Notification by hospital relative to donor status.

26:6-89  Notification by hospital relative to donor status.
13. a. A hospital shall notify an organ procurement organization or a third party designated by that organization of a person whose death is imminent or who has died in the hospital, in a timely manner sufficient to ensure that the examination, evaluation, and ascertainment of donor status as set forth in subsection d. of this section can be completed within a time frame compatible with the donation of organs and tissues for transplant.  The notification shall be made without regard to whether the person has executed an advance directive for health care.

b.When a hospital refers a person who is dead or whose death is imminent to an organ procurement organization, the organization shall make a reasonable search of the records of the New Jersey Motor Vehicle Commission and any donor registry that it knows exists for the geographical area in which the person resides in order to ascertain whether the person has made an anatomical gift.

c. (1) If the patient has a validly executed donor card, donor designation on a driver's license, advance directive for health care, will, other document of gift, or registration with a Statewide organ and tissue donor registry, the procurement organization representative or the designated requester shall attempt to notify a person listed in section 9 of this act of the gift.

If no document of gift is known to the procurement organization representative or the designated requester, one of those two individuals shall ask the persons listed in section 9 of this act whether the decedent had a validly executed document of gift.  If there is no evidence of an anatomical gift or refusal by the decedent, the procurement organization representative or the designated requester shall attempt to notify a person listed in section 9 of this act of the option to donate organs or tissues.

(2)The person in charge of the hospital or that person's designated representative shall indicate in the medical record of the decedent whether or not a document of gift is known to exist, or otherwise whether consent was granted, the name of the person granting or refusing the consent, and that person's relationship to the decedent.

d.When a hospital refers an individual who is dead or whose death is imminent to a procurement organization, and the organization has determined based upon a medical record review that the individual may be a prospective donor, then the organization may conduct any blood or tissue test or minimally invasive examination that is reasonably necessary to evaluate the medical suitability of a part that is or may be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor.  The hospital shall not withdraw any measures that are necessary to maintain the medical suitability of the part until the procurement organization has had the opportunity to advise the applicable persons as set forth in section 9 of this act of the option to make an anatomical gift or has ascertained that the individual expressed a contrary intent.  The results of such tests and examinations shall be used or disclosed only for purposes of evaluating medical suitability for donation and to facilitate the donation process, and as required or permitted by existing law.

e.At any time after a donor's death, the person to whom an anatomical gift may pass pursuant to section 10 of this act may conduct any test or examination that is reasonably necessary to evaluate the medical suitability of the body or part for its intended purpose.

f.An examination conducted pursuant to this section may include an examination of all medical and dental records of the donor or prospective donor.

g.Upon the death of a minor who was a donor or had signed a refusal, the procurement organization shall, unless it knows the minor is emancipated, conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.

h.Subject to the provisions of this act, the rights of a person or entity to whom a part passes pursuant to section 10 of this act shall be superior to the rights of all others with respect to that part.  The person or entity may accept or reject an anatomical gift in whole or in part. Subject to the terms of the document of gift and the provisions of this act, a person or entity who accepts an anatomical gift of an entire body may allow embalming, burial or cremation, and the use of remains in a funeral service.  If the gift is of a part, the person or entity to which the part passes pursuant to section 10 of this act, upon the death of the donor and before embalming, burial or cremation, shall cause the part to be removed without unnecessary mutilation.

i.Neither the physician or registered professional nurse who attends the decedent at death nor the physician or registered professional nurse who determines the time of the decedent's death may participate in the procedures for removing or transplanting a part from the decedent.

j.A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.

k.Each hospital or other licensed health care facility in this State shall be authorized to enter into such agreements or affiliations with procurement organizations as are necessary for the coordination of procurement and use of anatomical gifts.

26:6-86.1 Findings, declarations relative to anatomical gifts.

26:6-86.1  Findings, declarations relative to anatomical gifts.
1.The Legislature finds and declares that:

a. A mental or physical disability does not diminish a person's right to health care;

b.The "Americans with Disabilities Act of 1990" prohibits discrimination against persons with disabilities, yet many individuals with disabilities still experience discrimination in accessing critical health care services;

c.Individuals with mental and physical disabilities have been denied life-saving organ transplants based on assumptions that their lives are less worthy, that they are incapable of complying with complex post-transplant medical regimens, or that they lack adequate support systems to ensure such compliance;

d.Although organ transplant centers must consider medical and psychosocial criteria when determining if a patient is suitable to receive an organ transplant, transplant centers that participate in the Medicare and Medicaid programs are required to use patient selection criteria that result in a fair and non-discriminatory distribution of organs; and

e.New Jersey residents in need of organ transplants are entitled to assurances that they will not encounter discrimination on the basis of a disability.

26:6-86 Recipients of anatomical gift.

26:6-86  Recipients of anatomical gift.
10. a. An anatomical gift may be made to the following persons or entities named in the document of gift:

(1)a hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education;

(2)subject to the provisions of subsection b. of this section, an individual designated by the person making the anatomical gift if the individual is the recipient of the part; or

(3)an eye bank or tissue bank.

b.If an anatomical gift to an individual cannot be transplanted into the individual, the part shall pass in accordance with subsection f. of this section in the absence of an express, contrary indication by the person making the anatomical gift.

c.If there is more than one purpose of an anatomical gift set forth in the document of gift but the purposes are not set forth in any priority, the gift shall be used for transplantation or therapy, if suitable.  If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.

d.If an anatomical gift of one or more specific parts is made in a document of gift that does not name a person or entity as described in subsection a. of this section and does not identify the purpose of the gift, the gift shall be used only for transplantation or therapy, and shall pass in accordance with subsection f. of this section.

e.If a document of gift specifies only a general intent to make an anatomical gift by words such as "donor," "organ donor," or "body donor," or by a symbol or statement of similar import, the gift shall include all parts, may be used only for transplantation or therapy, and shall pass in accordance with subsection f. of this section.

f.For the purposes of subsections b., d., and e. of this section, the following shall apply:

(1)if the part is an eye, the gift shall pass to the appropriate eye bank;

(2)if the part is tissue, the gift shall pass to the appropriate tissue bank; and

(3)if the part is an organ, the gift shall pass to the appropriate organ procurement organization as custodian of the organ.

g.An anatomical gift of an organ for transplantation or therapy, other than an anatomical gift under paragraph (2) of subsection a. of this section, shall pass to the organ procurement organization as custodian of the organ.

h.If an anatomical gift does not pass pursuant to subsections a. through g. of this section or the decedent's body or part is not used for transplantation, therapy, research, or education, custody of the body or part shall pass to the person or entity under obligation to dispose of the body or part.

i.A person or entity shall not accept an anatomical gift if the person or entity knows that the gift was not effectively made pursuant to this act or that the decedent made a refusal pursuant to this act that was not revoked.  For the purposes of the subsection, if a person or entity knows that an anatomical gift was made on a document of gift, the person or entity shall be deemed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift on the same document of gift.

j.Except as otherwise provided in paragraph (2) of subsection a. of this section, nothing in this act shall be construed to affect the allocation of organs for transplantation or therapy.