Many people believe that if a loved one has moments of clarity after being declared incapacitated, they can simply sign a new advance directive, health care proxy, or other planning document. New Jersey law is more complicated.
The case In re Roche, 296 N.J. Super. 583 (Ch. Div. 1996), addresses an important question: Can a person who has already been adjudicated incapacitated and placed under guardianship execute a valid advance directive? The court's answer was no. However, the court also recognized that the person's wishes still matter and may continue to influence future medical decisions.
For New Jersey families, the decision highlights the importance of completing estate planning and incapacity planning documents before a guardianship proceeding becomes necessary.
The Facts of In re Roche
Clementine Roche had been adjudicated incapacitated in 1993 due to dementia, and the Public Guardian for Elderly Adults was appointed as her guardian. While residing in a nursing home, Ms. Roche discussed her medical wishes with representatives of the Public Guardian's Office. She indicated that she did not want CPR or artificial nutrition and hydration through feeding tubes under any circumstances.
In 1995, she signed what purported to be an advance directive reflecting those wishes. Medical professionals and guardian representatives believed she understood the nature and consequences of the document at the time she signed it. The guardian then asked the court to determine whether the advance directive was valid and binding. If not, the guardian sought guidance on what weight should be given to the document in future medical decision-making.
The Court's Holding
The court held that a person who has already been adjudicated incapacitated cannot execute a valid advance directive under New Jersey's Advance Directives for Health Care Act. The statute permits a competent adult to execute an advance directive, and the court concluded that the Legislature intended advance directives to be created before a loss of decision-making capacity occurs.
As the court explained, once a person has been adjudicated incapacitated and remains subject to a guardianship, it is too late to create a legally enforceable advance directive under the statute.
At the same time, the court rejected the idea that the document should simply be ignored. Even though the advance directive was not legally valid, it could still be considered evidence of Ms. Roche's wishes and subjective intent when her guardian later faced medical decisions on her behalf.
The Right of Self-Determination Does Not Disappear
One of the most important aspects of Roche is its recognition that incapacitated persons retain a right of self-determination.
Building on earlier New Jersey cases such as In re Conroy and In re M.R., the court emphasized that incapacitated individuals have the same fundamental right to bodily integrity and medical self-determination as competent persons. The difference is that once a person lacks legal capacity, those rights must be exercised through substitute decision-makers and balanced against the individual's best interests.
In other words, guardians do not supplant the person's wishes. Rather, guardians are expected, whenever possible, to determine what the incapacitated person would have chosen if competent and make decisions using a substituted-judgment analysis. Evidence of those wishes can come from conversations, religious beliefs, prior conduct, powers of attorney, living wills, and similar expressions of intent.
For a broader discussion of medical decision-making rights in New Jersey, see my article on the right to refuse medical treatment in New Jersey.
The Practical Impact on Powers of Attorney and Other Planning Documents
Although Roche specifically involved an advance directive, the decision illustrates a broader practical concern. Once a court has adjudicated a person incapacitated and appointed a guardian, the individual's ability to execute new legal documents becomes significantly more complicated.
Whether a will, power of attorney, trust amendment, deed, or other document may be validly executed depends on the nature and scope of the guardianship order, the person's remaining capacity, and, in some situations, court involvement. Although Roche addressed an advance directive rather than a power of attorney, the case demonstrates how a judicial declaration of incapacity can significantly affect an individual's ability to engage in future legal planning.
This is one reason why proactive planning is so critical. Advance directives and powers of attorney are generally most effective when executed before cognitive decline leads to guardianship litigation.
Why Roche Still Matters Today
Nearly three decades after it was decided, In re Roche remains a useful reminder that incapacity planning works best when completed early.
The case reinforces two important principles. First, New Jersey's advance directive statute is designed for competent adults planning ahead for a future loss of capacity. Second, even after a guardianship is established, an incapacitated person's expressed wishes remain relevant and should be considered when guardians make health care decisions.
Families facing capacity concerns should therefore act promptly. Waiting until after a guardianship has been established may eliminate the ability to create certain legally enforceable planning documents, even when the individual appears capable of expressing thoughtful preferences.
If you are dealing with questions concerning incapacity, guardianship, or medical decision-making, you may also find my article on guardians ad litem and mental capacity in New Jersey helpful.