Wednesday, September 4, 2013

NJ guardian laws leave Toms River man fighting to regain freedom

The Bill of Rights no longer applies to Ken Schmidt.

He can’t vote, sign a lease, get married or open a bank account.

Schmidt, 74, had many of his civil rights stripped away after he fell and hit his head outside his Toms River home in January 2012. A judge declared him to be mentally incapacitated, and ordered the state Public Guardian to take charge of his assets and medical care under New Jersey’s guardian laws.

With one false step, Schmidt, a retired insurance salesman, plunged headlong into a bureaucratic system he hasn’t been able to climb back out of, even though he says he fully recovered a year ago. He walks under his own power, writes coherently in a clear, steady hand, enjoys James Patterson thrillers, and is conversant in such wide-ranging topics as the A-Rod steroid scandal, Obamacare and the recent bloodshed in Egypt.

Yet until a judge says otherwise, Schmidt can’t even receive his own mail. Nor can he leave the $5,000-a-month assisted-living facility the state placed him in more than a year ago, and return home to the Toms River townhouse he owns, mortgage-free, just six miles away.

“I never wanted this. I never asked for this. They just buried me here,” he told the Asbury Park Press.

“I want life, liberty and the pursuit of happiness,” he said. “I want my life back, first and foremost ... but nobody seems to care.”

Little public scrutiny

Schmidt’s predicament is a cautionary tale of how quickly someone’s civil rights and life savings can be swept away, and just how difficult it can be to get a judgment of incapacity lifted.

In addition to his home, Schmidt had more than $65,000 in the bank prior to his accident. He said the care manager assigned to him by the Office of the Public Guardian has told him that those funds have been exhausted paying for his care.

“ ‘It’s all gone.’ That’s their classic answer: ‘I’m sorry, it’s all gone.’ And they won’t give me anything in writing,” Schmidt said. “Everything’s just disappeared.”

The state’s guardianship system is a critical safety net for tens of thousands of disabled and vulnerable individuals.

But the system is shrouded in secrecy. Court documents in guardianship cases aren’t public records, the identities of wards and their guardians aren’t publicly disclosed and no one keeps track of how many active guardianship cases there are statewide.

All guardians, except for the Public Guardian, are required to file an annual update on the incapacitated person’s condition and care, and an accounting of how the person’s assets are being spent. In Schmidt’s case, the Public Guardian, a post currently held on an acting basis by Helen C. Dodick, doesn’t have to account for how his money was spent until he dies, according to the judge’s order.

Meanwhile, privacy rules prohibit the Office of the Public Guardian from commenting on Schmidt’s case. An agency spokeswoman said Schmidt could sign a release to waive his privacy rights, but because he’s still legally considered to be incapacitated, he can’t sign anything, at least not without his guardian’s permission.

“I have no rights. I’m not allowed to do anything,” Schmidt complained.

“The state has too much power. I know that they are helping people, and people do need help,” he said. “(But) they just assumed I wouldn’t rehabilitate.”

Rare to get out

It’s the rare person who tries to get out from under a guardianship, which requires the filing of a petition in state Superior Court.

In the vast majority of guardianship cases, the incapacitated person has progressive dementia that only worsens over time. Jeffrey M. Moran, the Ocean County surrogate, says his office typically handles no more than two or three requests a year from wards or their guardians to dissolve a guardianship.

The process requires affidavits from two doctors, or a doctor and a psychologist, attesting that the person has sufficiently recovered to have his personal rights restored.

Without the cooperation of their guardians or families, however, wards like Schmidt are at a distinct disadvantage.

“There are significant impediments to regaining your rights,” said Point Pleasant attorney Robert F. Brogan, past president of the New Jersey chapter of the National Academy of Elder Law Attorneys.

“You have no access to funds, and you have no legal ability to contract with anybody to help you,” he said. “How do you hire a doctor, how do you hire a lawyer, when the court has taken away your ability to engage in contracts?”

Such restrictions are proper and necessary to protect a truly incapacitated ward from making critical mistakes, such as “giving $50,000 away to the vacuum salesman,” Brogan noted.

But when a ward is no longer incapacitated, the restrictions of an indefinite guardianship can be difficult to bear, Brogan said.

“Your life,” he said, “can really get turned upside down.”

Full Article and Source:
NJ guardian laws leave Toms River man fighting to regain freedom


Finny said...

Mr. Schmidt is so very articulate. Thank you sir for speaking for many. I hope someone hears what happened to you and comes to your defense.

Thelma said...

Facilities have to be paid, but guardians should be state employees; not feasting fiduciaries.

Anonymous said...

I have NEVER seen anything like the horror stories I've been seeing with guardianship abuse! The woman I so deeply love is now a pitiful statistic too. How can mankind allow this to ever be possible? I will fight this issue with all my energy and resources to help change these outlandish laws and prosecute any guardian who deliberately isolates, medicates, & liquidates the estates of the wards out of obvious greed and total disregard for human beings. I pray that all those who partake in this type of evil canabalizm will inherit the sam horrible, lonely, frightening death before they meet the devil!

Anonymous said...

Where is this man's guardian ad litem? He should contact the GAL immediately, and if this isn't in court in a week, report the GAL to the Bar. There are at least two attorneys who should be looking at license problems here -- the GAL, and whoever represents that guardianship program.

Anonymous said...

I'm in the same situation my mom us in a nursing home she was confused at one time u had changed her doctor now she fine second doctytook off medication he said she shouldn't be on. This nursing will.not allow my to see my mom on the floor she is on I have to visit her in first floor for 30min
monitored they don't want me to see what's going on upstairs on the floor she is on she was threatened by other resident first day on the floor I told them to move her off that floor they wouldn't do it sure enough couple weeks later my mom got six stitches in her head an black eye she was bear up I don't know what to do if anyone can help me with this I would be very greatful thank you

Anonymous said...

My mom is being abused by her gaurdian also who is gal

Anonymous said...

Need help my mother was forced to a nursing home by a public appointed gaurdian that sheshohuld not have don't need and she is being abused in the Newport nursing home in Jersey city New jersey she said she don't understand how the state can just take a person and put them in an insane asylum when they are not crazy and have a son that is willing to take care of her if anyone can help me with this I would really be grateful my name is Glenn Tardi my phone number is (201)705-3602 thanks

Diane said...

"Such restrictions are proper and necessary to protect a truly incapacitated ward from making critical mistakes, such as “giving $50,000 away to the vacuum salesman,” Brogan noted." In my mother's case, the guardian, Mary Giordano from Garden City, NY was paid $50,000 from my mother's account for her "services." I wish it was a vacuum salesman, the I could have pressed criminal charges.