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Can you obtain guardianship over someone addicted to drugs or alcohol?

Posted by Anthony Serra | Dec 12, 2018 | 0 Comments

Sunrise and start of a new day

The short answer is yes. You can acquire guardianship over a person who is addicted to drugs or alcohol. Under New Jersey guardianship law (found at N.J.S.A. 3B: 1-2) an “incapacitated person” is defined as: 

“. . . an individual who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that the individual lacks sufficient capacity to govern himself and manage the individual's affairs.”

Of course, this begs the question of whether it is wise to file for guardianship in such a situation and whether it will help. That's a difficult question and depends on the circumstances.

When guardianship may be appropriate

Guardianships are typically applied for when a person is permanently disabled and incapable of managing their own affairs. Examples would be an older person with advanced dementia or suffering from a serious stroke, or a younger person with a severe developmental disability. In such cases, the prognosis for improvement in terms of cognition is poor. Guardianship in those cases is usually indicated and appropriate.  However, while someone with a severe and chronic drug or alcohol addiction may be technically incapacitated at the moment, their prognosis for improvement is usually very good, assuming they get the treatment they need to recover and remain sober. This creates some conflict since the capacity issue is fluid and the guardianship may only be needed short term.

But is guardianship wise?

So, again I ask, is it wise to seek guardianship for someone who is addicted? My honest answer is that in most cases, it probably is, even though guardianship may not be a long term solution. However, in the short term, guardianship may empower you (the guardian) to force the issue of treatment and apply some level of pressure on the person in need. Of course, the person with the addiction must ultimately want to get help, but guardianship may represent the necessary legal intervention that convinces someone to seek the help they need.

What should the application seek?

If you do decide to file guardianship for someone addicted to drugs or alcohol, a few things should be included in your application:

  • There should be a request for the appointment of a temporary guardian. New Jersey law now allows for a temporary guardian to be appointed in exigent cases. See N.J.S.A. 3B:12-24.1.
  • There should also be a request to expand the authority of the guardian to include the ability to sign the person into an inpatient treatment facility against their will. Typically, a general guardian does not have the inherent authority to do this. I am not talking about an involuntary commitment, which is a much different process. What I am referring to is essentially precluding a person from signing themselves out of a treatment facility AMA (against medical advise).
  • Your court papers should identify the treatment facility you have in mind that will agree to keep the person in the facility even if they wish to leave. Not all facilities will do this, but some might under certain circumstances.

Addiction: the enemy of the brain

Addiction is a powerful enemy of a person's mind and their free will that essentially hijacks all rational thought and reasoning. The brain has actually changed, which makes it very difficult for a person to wake up one day and simply say: okay, I'm done, no more drugs. Recovery is not that easy.

There is hope

On the positive side, the brain is elastic and can settle back into a normal functioning state that will allow a person to begin making more rational decisions. The science of this is called neuroplasticity. Whether that takes 90 days or a year to occur depends on many factors, but in all cases, the guardianship mechanism might be a helpful tool in achieving a positive result.

About the Author

Anthony Serra

Tony Serra is a passionate advocate, especially for the elderly, disabled and those of modest means who need the services of an experienced and caring attorney. For more than 30 years, Tony has been helping common, everyday folks navigate their way through life's turbulent waters. Through innovation and utilizing modern technology, Tony and his law firm are now able to offer quality legal services that at one time were prohibitively expensive, at a fraction of the cost. If you need basic legal services, such as a Will, Power of Attorney, Living Will, Special Needs Trust, real estate transactions, uncontested guardianship pleadings and much more, please visit our website and our SMART LAW legal services platform. You will be pleasantly surprised by what we offer and glad you did! Tony is also an experienced mediator and founder of the Conflict Resolution Center of NJ. Tony has specific training in family matters as well as elder law and contested guardianship and estate cases.  


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