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In re Farnkopf

October 22, 2003

IN THE MATTER OF ALLEN M. FARNKOPF, ALLEGED TO BE IN NEED OF PROTECTIVE SERVICES


On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Salem County, Docket No. CP-0020-01.

Before Judges Skillman, Wells and Fisher.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2003

The Adult Protective Services Act (the Act)*fn1 authorizes protective services providers, such as appellant Salem County Office on Aging, to pursue legal relief for the benefit of vulnerable adults. In this case, a local bank advised the Office on Aging that a 90-year old widower, Allen M. Farnkopf, was withdrawing $70,000 in cash to give to his caretaker. The Office on Aging immediately investigated and successfully applied for access to Mr. Farnkopf and his home, and permission to have Mr. Farnkopf psychiatrically evaluated. The Chancery judge also appointed what he referred to as an"interim conservator/guardian" for Mr. Farnkopf's assets. After the entry of a second order for additional relief, which was then continued for approximately 60 days, the action was dismissed. A few months later, the"interim conservator/guardian" moved for the payment of his fees; the court ultimately imposed the obligation to pay those fees upon the Office of Aging. Because the record does not support a finding that the Office on Aging acted frivolously, but rather appropriately pursued, consistent with its statutory authority, the vindication of Mr. Farnkopf's best interests, we reverse.

I.

The Act constitutes a legislative response to the risks and dangers of abuse, neglect and exploitation faced by our older, infirm and vulnerable citizens, as well as all other adults who are physically or mentally disabled or deficient. To meet these concerns, the Act created an efficient system for reporting the neglect, abuse and exploitation of vulnerable adults, and established the authority by which the Superior Court may intervene, on an expedited basis, to protect"vulnerable adults".

The Act defines a"vulnerable adult" as a person"18 years of age or older who resides in a community setting and who, because of a physical or mental illness, disability or deficiency, lacks sufficient understanding or capacity to make, communicate, or carry out decisions concerning his well-being and is the subject of abuse, neglect or exploitation." N.J.S.A. 52:27D-407. Upon receiving a report that a vulnerable adult is being or has been the subject of abuse, neglect or exploitation, a county adult protective services provider (provider)"shall initiate a prompt and thorough evaluation of the report within 72 hours." N.J.S.A. 52:27D-410a and b. If prevented or hampered, a provider may petition for an order compelling the evaluation. N.J.S.A. 52:27D-410c. If there is"reasonable cause" to believe a"vulnerable adult has been the subject of abuse, neglect or exploitation," the provider is required to"determine the need for protective services" and make formal referrals to state, county and local agencies, and hospitals and organization, for services. N.J.S.A. 52:27D-411a. The provider is also required to"follow up on referrals," N.J.S.A. 52:27D-411a, and may seek injunctive relief against a caretaker or any other person who interferes with the providing of protective services, N.J.S.A. 52:27D-412a.

In exigent circumstances and when the vulnerable adult refuses or is unable to consent, the provider"shall petition a court of competent jurisdiction for an order authorizing the provision of protective services." N.J.S.A. 52:27D-413a. The Act requires that the court set the matter down for a hearing within 24 hours of receipt of the petition, and allows for the appointment of counsel. N.J.S.A. 52:27D-413b.

II.

On May 7, 2001, the Office on Aging obtained a referral that Mr. Farnkopf was about to withdraw $70,000 in cash to give to his caretaker. On May 8, 2001, in accordance with its statutory obligations, the Office on Aging obtained an order from the Chancery judge permitting access to the person and property of Mr. Farnkopf, appointing Jonathan J. Garbini, Esq. as"interim conservator/guardian" (Garbini) to take custody of Mr. Farnkopf's assets, and authorizing the Office on Aging to arrange for a psychiatric evaluation. The order memorialized the Chancery judge's finding that Mr. Farnkopf"is a vulnerable adult in need of protective services as a result of exploitation by [an]other," and scheduled another hearing for May 11, 2001.

The Office on Aging engaged the services of Dr. David M. Friel, a board certified psychiatrist, who provided his impressions upon visiting Mr. Farnkopf on May 10. Dr. Friel found that Mr. Farnkopf was widowed and living alone in a single family dwelling. When he arrived, Dr. Friel observed Mr. Farnkopf and two friends searching outside the premises for a house key. He was advised that Mr. Farnkopf had a propensity to hide keys in various places but unfortunately often forgot where. When the key was eventually located, and the front door opened, three cats ran out. Dr. Friel observed that"part of the house was very dirty and full of trash, [and] [t]he odor was so foul [he] was only able to tolerate several minutes in the dwelling." Dr. Friel found that Mr. Farnkopf was alert, oriented to person, place and time, and friendly and cooperative.

As for the bank transaction which compelled this investigation, Dr. Friel reported that

Mr. Farnkopf wants to give a large sum of money to a woman he says he has known for three years who he met at Cowtown. When I asked him why he would do this he replied that she"is a nurse and promised to care for him and bury him." He did not comprehend the gravity of giving large sums of money away as a gift. His ability to think abstractly is markedly impaired as is his insight and judgment....

Mr. Farnkopf is not competent to make financial decisions on his own behalf.

Based on this additional information, on May 11, 2001 the Chancery judge entered an order which again stated that Mr. Farnkopf"is a vulnerable adult in need of protective services as a result of exploitation by [an]other," continued the appointment of Garbini as"conservator to preserve Mr. Farnkopf's assets," permitted the caretaker to have contact with Mr. Farnkopf, and authorized another examination of Mr. Farnkopf by a"physician acceptable to Mr. Farnkopf's conservator." Garbini's chosen physician examined Mr. Farnkopf on May 24, 2001 and reported on the same day that Mr. Farnkopf"is a delightful gentleman,... oriented to time, place and person," who"shows no signs of dementia and is able to attend to his own personal and financial affairs."

On May 29, 2001, John M. Waters, Jr., Esq., advised the court of both his firm's retention by Mr. Farnkopf and the fact that he and his client"do not... presently dispute the need for protective services." In addition, on June 7, 2001, counsel for the Office on Aging advised the Chancery judge that counsel for Mr. Farnkopf, counsel for the caretaker, and Garbini, had all agreed to the continuing of the May 11 order for protective services for another 30 days. The record does not reveal whether that order was ever entered, but the hearing scheduled for June 11 did not occur until July 11, 2001, suggesting that the terms of the proposed order were adhered to by the court and counsel.

On July 11, 2001, the Chancery judge dismissed the protective services matter. The order directed that control over Mr. Farnkopf's assets be relinquished and Garbini discharged, and also stated that payment of Garbini's fees"and the responsibility therefore, shall be determined upon submission of the appropriate application."

On or about July 24, 2001, the Office on Aging filed a complaint for the appointment of a conservator for Mr. Farnkopf.*fn2 At the same time, an order setting a hearing date was fixed for August 31, 2001 and Gary Salber, Esq. was appointed to represent Mr. Farnkopf.*fn3 In response, Mr. Farnkopf, through his privately-retained counsel, moved to dismiss the action, correctly and successfully claiming that his objection alone was sufficient to preclude the appointment of a conservator. N.J.S.A. 3B:13A-2; In re Conservatorship of Halley, 342 N.J. Super. 457, ...


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