Woman trapped in guardianship for 3 years finally has her rights restored after KIYC investigation

By: Walt Kane

A woman featured in a series of Kane In Your Corner investigations after she was trapped in a guardianship against her will, has finally gotten her rights restored. But the ordeal lasted three years and cost her an estimated $200,000.

Last week, Monmouth County Superior Court Judge Joseph Quinn finally spoke the words Elberta Cohen was longing to hear.

“We’re going to terminate the guardianship,” the judge said.

 

The decision means Cohen, 80, can finally make her own decisions again. Cohen said the ruling made her feel “wonderful, elated, very happy.” But she also called her situation “more than unfortunate.”

 

Kane In Your Corner first investigated Cohen’s situation last year. Her whole life had been put in the hands of a stranger, a guardian appointed by the court. She was left unable to access her own money or make her own legal or medical decisions.

 

Cohen’s youngest son, Robert, filed the guardianship petition. In an interview with Kane In Your Corner last year, he claimed he was concerned because he felt his mother’s thoughts could be “scattered at times.” Cohen and her eldest son, Larry, say Robert is not even on speaking terms with either of them. They say he filed the petition simply to stop her from updating her will, potentially reducing or eliminating his inheritance.

The Cohen case raises questions about New Jersey’s guardianship system. There are no clear diagnostic standards for judges to determine if a person lacks the capacity to make decisions; the judge’s discretion is nearly absolute. Once in a guardianship, it can be next to impossible to get out. More than 40,000 people lived under guardianship between 2018 and 2022, according to the New Jersey Judiciary. Just 73 people have had rights restored.

“It isn’t that common,” says Cohen’s attorney, Lauren Marinaro. “I wish it was more common. It’s difficult to do. I wish it was less difficult to do. But we got it done.”

 

Cohen was placed under guardianship based on evaluations by three doctors. Two found her unable to manage her affairs. But their conclusions were based in part on suspect evidence. One doctor asked Cohen to draw a clock. He admits she accurately depicted the time, which was the purpose of the question. But he chose to treat it like an art project, marking her question wrong because, in his opinion, Cohen did not depict the hands of the clock emanating from the center of the circle.

 

“The guardianship system definitely has a tilt towards getting people into guardianships and it can be very, very difficult for those folks to get restored back to capacity,” says Michael Brower, legal director of Disability Rights New Jersey. Brower says he attributes that in part to judges feeling concerned they could be publicly blamed if a person they rule has capacity is later injured. By contrast, Brower says some judges feel confiscating a person’s rights is the safer choice, even if it leaves them miserable and unable to exercise any control over their own lives. A bill, which would require judges to impose the least restrictive guardianship possible, has been languishing in Trenton for several years.

 

Getting rights restored is also expensive. Cohen had to hire her own attorney and pay for new examinations by her own medical experts. All the while, she also had to pay the guardian and the guardian’s attorney. Cohen is still waiting for a full accounting of her funds, but Marinaro estimates her client is out about $200,000.

 

Cohen’s freedom comes with strings attached. The judge required her to sign a power of attorney, allowing a financial advisor and geriatric care manager to assist her in making decisions. Cohen says she’s OK with the compromise because, in the event of a disagreement, she can still make the final decision, which is what she really wanted.

 

Cohen believes she would not have gotten her freedom back without the help of Kane In Your Corner. “You were kind enough to come to my house,” Cohen says. “You interviewed me. And you’re here in the court now. And I hope this helps everybody, that no one else will have to go through what I’ve just been through."

 

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Woman trapped in guardianship for 3 years finally has her rights restored after KIYC investigation

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KIYC: Thousands of NJ residents are in court-ordered guardianships. Some fight to get rights back

KIYC: Thousands of NJ residents are in court-ordered guardianships. Some fight to get rights back

By: Walt Kane

 More than 36,000 people in New Jersey live under court-ordered guardianships, essentially losing many or most of their rights, a Kane In Your Corner investigation finds. Some say the guardianships were unnecessary and imposed against their will. But terminating a guardianship can be difficult and costly.

Elberta Cohen, 80, can remember the details of every trip she and her late husband took. Her family room is filled with photos and souvenirs of their travels.

 

“This, of course, is Russia,” Cohen says, gesturing to a framed photo. “That’s St. Petersburg. I loved it, absolutely loved it.”

 

Cohen also enjoys playing Scrabble and can talk at length about current events like the war in Ukraine. But she has no access to her money and can’t make major life decisions. Those are in the hands of a stranger, a guardian appointed after a judge ruled her “totally incapacitated.”

 

“I went to the dentist the other day and I had to explain, ‘The money is there. I'll get it to you.’” Cohen recalls. “Do you know how embarrassing that is?” 

 

New Jersey has no diagnostic standards to determine if a person lacks capacity, according to state judiciary spokesperson, Peter McAleer. Instead, it “requires courts to determine the functional capacity of the individual, regardless of their diagnosis.” In other words, if a judge says someone needs a guardian, then they do.

 

The National Association to Stop Guardianship Abuse says guardianships may be necessary in some cases, but are too easily abused, given the consequences. “The person in a guardianship has no right to choose where to live, who to associate with. They have no control over their money,” says NASGA director Marcia Southwick.

 

Cohen lost her rights after her youngest son, Robert, petitioned for guardianship. She says he did it to stop her from changing her will, after “I told him he wasn't gonna get any money.” Robert Cohen insists the will had nothing to do with it. He says his mother’s “thoughts can be scattered at times. Other times, she can be coherent.”

 

Elberta says she’s “not incapacitated in any way, shape or form,” and that one of New Jersey’s top eldercare attorneys, Lauren Marinaro, has agreed to represent her.

 

“I believe she is competent to make decisions and should be restored to capacity,” Marinaro says.

 

But Southwick says terminating a guardianship can be costly.

 

“The lawyer for the guardian can charge your estate to fight back,” Southwick says. “So basically, you're being held captive while people are just charging your estate. It's as if you’ve become a cash cow.”

 

As in most guardianship cases, Elberta was evaluated by three doctors. One found she could “manage her medical, financial and legal affairs.” But the others disagreed.

 

Faced with the conflicting reports, the judge ordered a full or “plenary” guardianship, covering not just Cohen’s estate but also her “person.” Marinaro has now gotten three more doctors to do evaluations. All found her capable of making decisions on her own. Marinaro says the lack of a diagnostic standard can make evaluations subjective, and “only the people giving the test know how to how to grade the quiz.”

 

The subjectivity also extends to opinions of Cohen’s living conditions. The guardianship petition claimed the house was “very filthy” and so cluttered that it was “unsafe” for Cohen to walk. But Kane In Your Corner visited the house more than once, and never saw that. Footage shows the house is clean, and while there is some clutter, like a dining room table that is largely covered by books and knick-knacks, it does not create an impediment to walking around.

 

“You don't have to have a perfectly clean house every day to be an adult with the ability to do your own thing,” Marinaro says. “You're still an adult, and you still have fundamental rights.”

 

Elberta admits her life isn’t perfect. She lives with her oldest son Larry. She says she and Larry argue at times, sometimes loudly. But she says, “I don‘t want to be taken care of by a stranger” and disputes Robert’s contention that Larry “is controlling her life.” So when the guardian sought to have Larry evicted and replaced by a full-time aide earlier this year, Elberta was furious, especially since the filing openly stated the aide would likely be temporary and serve as a “transition to assisted living.”

 

“He was going to go and make me sell my home and put me in a nursing home,” Elberta says indignantly. “I feel it’s my home. I'm entitled to live where I want to live.”

 

Cohen’s case is scheduled to go to a court hearing next month.

 

If you have a story that needs to be investigated, click HERE to get in touch with Kane In Your Corner.

Full Article & Source:
KIYC: Thousands of NJ residents are in court-ordered guardianships. Some fight to get rights back