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In re Banford


October 13, 2010


On appeal from the Superior Court of New Jersey, Chancery Division-Probate Part, Bergen County, Docket No. P-087-09.

Per curiam.


Submitted: September 29, 2010

Before Judges Cuff and Fasciale.

On April 24, 2009, Judge Doyne entered an order declaring Ferne Marie Banford an incapacitated person. He appointed her son, Scott Banford, as guardian of her person and estate. Ferne Marie Banford was eighty-four years old and suffering from dementia of the Alzheimer-type. Her daughter, Lisa Banford, appeals. Appellant argues her mother is not physically disabled, and she is able to care for their mother in her home rather than the assisted living facility in which she currently resides. We affirm.

An action for guardianship of an incapacitated person is governed by statute, N.J.S.A. 3B:12-24 to -29, and court rule, Rule 4:86. A person is incapacitated if she "is impaired by reason of mental illness or mental deficiency to the extent that [s]he lacks sufficient capacity to govern [her]self and manage [her] affairs." N.J.S.A. 3B:1-2. The complaint for guardianship must be supported by affidavits of two physicians, or one physician and one psychologist, which discuss the results of an examination of the person that occurred within thirty days of the filing of the complaint and express an opinion and prognosis about the fitness of the alleged incapacitated person and her ability to govern herself or to manage her affairs. R. 4:86-2(b). A judge must determine by clear and convincing evidence that the alleged incapacitated person satisfies the statutory definition of incapacitated person. In the Matter of Macak, 377 N.J. Super. 167, 176 (App. Div. 2005). The person who challenges another person's capacity to care for herself or her affairs carries the burden of proof. In the Matter of M.R., 135 N.J. 155, 169 (1994).

Once a judge determines that a person is incapacitated, the judge possesses "broad powers and maintains far-reaching discretion . . . ." In the Matter of Mason, 305 N.J. Super. 120, 128 (Ch. Div. 1997). Nevertheless, the Legislature has identified an order of preference for selection of a guardian commencing with the spouse or domestic partner, if the spouse or domestic partner is living with the incapacitated person at the time of designation, proceeding to the incapacitated person's heirs and then friends. N.J.S.A. 3B:12-25. Consideration shall also be given to surrogate decision-makers designated by the incapacitated person while able to do so. Ibid. Thus, if the court appoints a person, consistent with the statute, who has demonstrated that he seeks to act in the best interests of the incapacitated person, this court will not disturb the appointment in the absence of the mistaken exercise of the considerable discretion vested in the judge.

Here, Judge Doyne found that the incapacitated person had given a power of attorney to her son "in excess of ten years ago," and that respondent was "diligent, responsible, and sincere with regard to his care for the parties' mother." The judge also found that the guardian selected by him was a licensed social worker and psychotherapist, describing him "particularly well suited to care for his mother." On the other hand, while noting her concern for the well-being of her mother, the judge questioned certain actions by appellant.

Having examined the record in its entirety, we are satisfied that respondent Scott Banford carried his burden of proof by clear and convincing evidence to designate his mother as an incapacitated person. Indeed, appellant does not contest their mother's ability to care for herself or to manage her affairs. Appellant contends she offered an alternate means to care for their mother and should have been appointed guardian of her mother. We discern, however, no basis to disturb the choice made by Judge Doyne. He appointed a person who is among those favored by the Legislature to serve as a guardian and who has functioned in the role of care-taker for several years. The appointment of respondent rather than appellant was well within the discretion vested in the judge.



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