On September 22, 2014, the Appellate Division of the New Jersey Superior Court upheld a decision that the sister, and not the mother, of a cognitively impaired woman should be awarded guardianship.  The Ward’s mother dutifully cared for her daughter her entire life; however, the Court found the mother’s live-in boyfriend threatened the Ward’s welfare.

The boyfriend touched and embraced the Ward in a way that observers stated appeared excessive and inappropriate.  The behavior did not rise to the level of substantiated unlawful sexual contact or assault.  Nevertheless, the Court found the behavior inappropriate and his excessive touching was a source of confusion and anxiety for the Ward.  As a result, the court found the best interests of the Ward would be served by appointing her sister as the guardian.

NRS 159.061 indicates that if there is no nomination of guardian, the Court “may” consider the appointment of the following persons in order of preference: spouse; adult child; parent; adult sibling.  While the statute does not clearly state the Court is bound by this order of preference, in practice, the Court routinely relies upon this order in the appointment of a guardian.  As a result, if this case occurred in Nevada, the Court would consider a preference for appointing the mother.  In addition, there was nothing to indicate that the mother was unsuitable to serve.  However, the petition of the mother could still be opposed if a party could establish that the appointment is not in the best interests of the Ward. Similar to the outcome in the New Jersey case, the Court may not necessarily appoint someone as guardian merely because of their order of preference.

Observations of service providers and social workers can make all the difference.  While observations of abuse must always be reported, documenting conduct which does not necessarily rise to that level can be crucial in establishing the best interests of the Ward.  Although social workers have an ethical duty to protect the privacy of their clients, Section 1.07 of the NASW Code of Ethics provides, in pertinent part, “the general expectation that social workers will keep information confidential does not apply when disclosure is necessary to prevent serious, foreseeable, and imminent harm to a client or other identifiable person.”

For over twenty years, Attorney Lee A. Drizin has been an advocate for the elderly. His practice has included the representation of both public and private Guardians involving heinous instances of abuse of the elderly at the hands of caregivers, family members and friends of the Ward.

Attorney Drizin has worked closely with the Las Vegas Metropolitan Police Department’s Abuse and Neglect Unit, Senior Protective Services, the Clark County District Attorney’s Office, the Nevada Attorney General’s Office, and the Senior Law Project in addressing exploitation issues.

Attorney Lee Drizin welcomes comments and questions from both Nurses and Social Workers. Please send your inquiries to: info@drizinlaw.com