Law Lessons from IN THE MATTER OF C.F.C., AN INCAPACITATED PERSON, App. Div., A-3168-11T3, May 9, 2013:
The law authorizes a current guardian to identify a person to take the guardian’s place upon his or her death. N.J.S.A. 3B:12-30. However, the appointment is not self-effectuating; the person designated must seek confirmation of the appointment. Ibid. The court shall then determine the testamentary guardian’s fitness and “make any order touching the testamentary guardianship as may be for the best interest and welfare of the incapacitated person.” N.J.S.A. 3B:12-34. Thus, a court “must take as definitive the only legislatively stated preference, ‘the best interest and welfare of the mental incompetent,’ which is to be applied giving due regard to the testator’s expressed design.” In re Queiro, 374 N.J. Super. 299, 311 (App. Div. 2005); cf. In re Guardianship of Hoppe, 32 N.J. Super. 460, 464 (Cty. Ct. 1954) (rejecting testamentary guardian for minor child where best interests supported selection of another).
In selecting a guardian, the court must be mindful that in its parens patriae role, it is the protector of the personal rights of an incapacitated adult. M.R., supra, 135 N.J. at 166; In re Conroy, 98 N.J. 321, 345 (1985). Our Court recognized, “A guardianship can be a ‘drastic’ restraint on a person’s liberty.” M.R., supra, 135 N.J. at 171 (citation omitted). “[T]he public policy of this State is ‘to maximize the developmental potential of [developmentally-disabled persons] while affording them the maximum feasible personal liberty.’” Id. at 166 (quoting N.J. Ass’n for Retarded Citizens v. Human Servs., 89 N.J. 234, 252 (1982)). A court is not bound by agreements of the parties, and must independently consider the evidence in determining whether a person is incapacitated, who shall serve as guardian, and where the person shall live. In re Guardianship of Macak, 377 N.J. Super. 167, 176-78 (App. Div. 2005) (reversing finding of incapacity where alleged incapacitated person entered into settlement declaring him incapacitated).
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