by Jose D. Roman | Sep 15, 2026 | Estate Planning, Guardianship, Living Will, Power of Attorney
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.
by Jose D. Roman | Sep 8, 2026 | Estate Planning, Guardianship, Living Will, Power of Attorney
New Jersey has long been a national leader in recognizing a person's right to decide what medical treatment they do and do not want. That right includes the ability to refuse life-sustaining treatment, even when refusing treatment may result in death. Although these cases often arise in heartbreaking circumstances, the legal principle is straightforward: medical treatment generally requires the patient's consent.
The right to refuse treatment is rooted in both personal autonomy and constitutional principles. New Jersey courts have recognized that competent adults have a fundamental right to make decisions about their own medical care, including the decision to decline treatment. The New Jersey Legislature later incorporated those principles into the New Jersey Advance Directives for Health Care Act, which expressly recognizes an individual's right to accept, reject, or discontinue medical treatment and to appoint another person to make decisions when the individual can no longer do so.
The Constitutional Basis for the Right to Refuse Treatment
New Jersey's modern law on refusing life-sustaining treatment began with the 1976 case of In re Quinlan. In that case, twenty-one-year-old Karen Ann Quinlan suffered severe brain damage and entered a persistent vegetative state. Her father sought authority to remove her from a ventilator after physicians concluded there was no realistic hope of recovery. The New Jersey Supreme Court held that an individual's constitutional right of privacy included the right to decline extraordinary life-sustaining treatment and that a guardian could assert that right for an incompetent patient under appropriate circumstances.
The United States Supreme Court later reached a similar conclusion in Cruzan v. Director, Missouri Department of Health. Nancy Cruzan was left in a persistent vegetative state following an automobile accident. The Court recognized that competent individuals have a constitutionally protected liberty interest under the Due Process Clause to refuse unwanted medical treatment. However, the Court also held that states may require reliable evidence of an incompetent patient's wishes before life-sustaining treatment is withdrawn. The decision helped spur the widespread use of living wills and health care powers of attorney across the country.
Conroy: Extending the Right Beyond Ventilators
In 1985 the New Jersey Supreme Court significantly expanded these principles in In re Conroy. Claire Conroy was an elderly nursing home resident suffering from severe, irreversible physical and cognitive impairments. The dispute involved whether artificial nutrition and hydration delivered through a feeding tube could be withdrawn.
The Court held that artificially provided nutrition and hydration constitute medical treatment and may be withdrawn under appropriate circumstances. More importantly, the Court established several decision-making standards for incompetent patients who had not left clear instructions. These standards focused on determining what the patient would have wanted and, in some circumstances, whether the burdens of treatment so outweighed its benefits that continuing treatment would be inappropriate even without clear evidence of the patient's wishes.
Today, Conroy remains one of New Jersey's most important end-of-life cases because it emphasized that the goal is not what family members, judges, or physicians want, but what the patient would have chosen.
Jobes: The Importance of Family and Substituted Judgment
In Matter of Jobes, the New Jersey Supreme Court addressed the case of a young woman who had remained in a persistent vegetative state for years following surgical complications. Her husband and family sought withdrawal of artificial nutrition and hydration.
The Court reaffirmed that the right to refuse life-sustaining treatment extends to incompetent patients. It also emphasized the role of close family members in applying a substituted judgment analysis, meaning an effort to determine what the patient would have chosen if able to decide. The Court ultimately allowed withdrawal of the feeding tube based upon evidence concerning the patient's values and wishes. Together, Quinlan, Conroy, and Jobes firmly established New Jersey's recognition of patient autonomy, even after a person loses decision-making capacity.
The Difference Between a Guardian and a Health Care Agent
Many people assume that a family member automatically gains authority to make medical decisions. That is not always true.
A person may designate a health care representative through an advance directive or medical power of attorney. Once the individual loses capacity, the representative gains legal authority to make health care decisions, including decisions about life-sustaining treatment, subject to the terms of the directive and the patient's known wishes. New Jersey law directs the representative to follow the patient's instructions whenever known.
A guardian, by contrast, receives authority from a court. Guardianship becomes necessary when a person has lost capacity and did not execute valid planning documents. If you would like to learn more about guardianship proceedings, see my articles on New Jersey guardianship, contested guardianship hearings, and who makes medical decisions in New Jersey.
Even a guardian's authority is not unlimited. A guardian is not free to substitute the guardian's personal beliefs for the ward's wishes. Instead, the guardian must attempt to make the decision the ward would have made based on the ward's values, statements, religious beliefs, and prior directives. The courts repeatedly emphasize that the patient's autonomy remains the central concern.
Must a Guardian or Agent Follow an Advance Directive?
Generally, yes.
Under New Jersey law, an advance directive is designed to preserve the patient's voice after incapacity occurs. A health care representative is expected to make decisions in accordance with the patient's instructions and known wishes. Only when the patient's preferences are unknown should the representative turn to a best-interests analysis.
Likewise, a guardian ordinarily must honor a valid advance directive. A court-appointed guardian does not gain the authority to rewrite the ward's prior decisions. The advance directive remains powerful evidence of the patient's wishes and usually controls medical decision-making.
There is one important qualification. New Jersey law provides that if an incapacitated patient clearly expresses a contemporaneous desire to receive life-sustaining treatment, that expressed wish can take precedence over an earlier contrary instruction in an advance directive.
Why Advance Directives Matter
The lesson from Quinlan, Conroy, Jobes, and Cruzan is that New Jersey law places tremendous importance on an individual's own choices. When a person's wishes are clearly documented, courts, physicians, guardians, and family members are far more likely to reach decisions consistent with those wishes.
An advance directive allows you to state what treatments you would accept or refuse and designate a trusted person to speak on your behalf. Without those documents, loved ones may face uncertainty, family disputes, guardianship proceedings, or court involvement at a time that is already emotionally difficult.
New Jersey law recognizes that the decision to undergo or refuse medical treatment belongs first and foremost to the individual. The best way to ensure your voice is heard is to make your wishes known before a crisis occurs.
by Jose D. Roman | Sep 1, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Legal Bulletin, NJ Supreme Court, Probate
Families often assume that a Last Will and Testament clearly reflects a loved one's wishes and that those wishes will be carried out without controversy. Unfortunately, that is not always the case. A recent decision by the New Jersey Supreme Court, Christakos v. Boyadjis, 262 N.J. 447 (2026), highlights how misunderstandings, outdated estate plans, and last-minute revisions can lead to years of probate litigation and significant expense.
The case involved two brothers, Peter and Nicholas Christakos, who had signed wills in 2003 providing that their estates would pass to one another and, ultimately, to certain family members. More than a decade later, they consulted an attorney about updating their estate plans. During that process, the attorney incorrectly interpreted provisions of the existing Wills and later drafted new Wills that did not fully accomplish what the brothers intended. After both brothers died, multiple probate disputes followed, eventually leading to a legal malpractice lawsuit against the drafting attorney.
The New Jersey Supreme Court was asked to decide whether a family member who was not a client of the attorney could sue the attorney for malpractice. The Court held that, under the circumstances presented, she could not. In adopting Section 51 of the Restatement (Third) of the Law Governing Lawyers, the Court emphasized that attorneys generally owe duties to their clients, not to every person who might have expected to inherit from an estate. Because there was insufficient evidence that the decedents intended the claimant to be a beneficiary under the later wills, the malpractice claim could not proceed.
Although the decision focuses on attorney liability, the more important takeaway for New Jersey families is the value of careful and proactive estate planning.
One lesson is the importance of regularly reviewing an estate plan. Many people create a Will and never look at it again. Over time, however, family relationships change, beneficiaries pass away, financial circumstances evolve, and personal priorities shift. An estate plan that made perfect sense twenty years ago may no longer reflect a person's wishes today. Regular reviews help ensure that documents remain consistent with current goals and avoid surprises after death. For more information about creating and updating a Will, see my article on Last Wills and Testaments in New Jersey.
The case also demonstrates the importance of clearly expressing testamentary intent (what the person signing the Will intends). Much of the litigation centered on determining what the brothers actually wanted to happen to their property. When estate planning documents leave room for interpretation, surviving family members may spend years fighting over those questions in court. Clear drafting, thorough communication with counsel, and careful documentation of significant decisions can substantially reduce the likelihood of future disputes.
Another important issue is planning before health concerns become urgent. Questions regarding diminished capacity frequently arise when Wills or estate planning documents are executed later in life. While most older adults retain the ability to make valid estate planning decisions, waiting until a medical crisis occurs can increase the risk of challenges after death. Addressing estate planning needs early is often one of the most effective ways to protect both the plan and the family members who may later be called upon to defend it.
The decision is also a reminder that family members should avoid making assumptions about inheritance rights. A relative may have been included in an earlier Will but omitted from a later one. Beneficiary designations, trusts, and revised estate planning documents can dramatically alter who ultimately receives property. Expectations based on old documents or family conversations often lead to disappointment and lawsuits.
For many New Jersey families, real estate is among the most valuable assets in an estate. Questions about who inherits a home, whether the property should be sold, and how ownership transfers after death are common sources of conflict. If you are dealing with inherited real estate, my article on Inherited Homes in New Jersey discusses several of the practical and legal issues that may arise.
The broader lesson of Christakos v. Boyadjis is that good estate planning is not simply about signing documents. It is about creating a legally sound plan that accurately reflects your wishes, communicating those wishes clearly, and revisiting the plan as life changes. Taking those steps can help minimize uncertainty, reduce the risk of expensive probate disputes, and provide peace of mind for both you and your loved ones.
Estate disputes do not always end up in court. In some cases, alternative dispute resolution may offer a more efficient path forward. You can learn more in our article on Arbitration Clauses and New Jersey Will Disputes. Likewise, major life events can have unexpected consequences for inheritance rights, as discussed in my post about Death During a Pending Divorce in New Jersey.
by Jose D. Roman | Aug 25, 2026 | Estate Administration, Medicaid, Medicaid Estate Recovery, Probate
In a published decision issued on April 8, 2025, the New Jersey Appellate Division addressed a significant question involving Medicaid estate recovery: Can the State recover Medicaid benefits paid during a recipient's lifetime from the proceeds of a survivorship medical malpractice claim brought after the recipient's death?
In Estate of Leonor R. Dizon v. State of New Jersey, Department of Human Services, Division of Medical Assistance and Health Services, 481 N.J. Super. 451 (App. Div. 2025). the court answered that question with a clear yes. The decision confirms the consensus understanding of what constitutes an estate asset for Medicaid recovery purposes and serves as an important reminder for families pursuing litigation on behalf of deceased loved ones.
The Background
The decedent, Leonor Dizon, received Medicaid benefits from 2006 through 2018. After suffering injuries from a fall at a hospital, she died ten days later. Following her death, her estate filed a medical malpractice lawsuit that included survivorship claims. Meanwhile, the New Jersey Division of Medical Assistance and Health Services (DMAHS) asserted a Medicaid estate recovery lien of approximately $214,392, representing Medicaid benefits paid on her behalf after age fifty-five. The estate challenged the lien, arguing that the State's recovery should be limited only to any medical expenses recovered from the lawsuit and should not extend to the entire value of the survivorship claim.
The Legal Issue
At the center of the dispute was the distinction between two Medicaid recovery mechanisms: a) Third-Party Liability Recovery and b) Estate Recovery.New Jersey law permits Medicaid to recover medical expenses from settlements or judgments obtained against responsible third parties. This is commonly known as third-party liability recovery. In addition, Federal and state law also require Medicaid estate recovery after the death of certain recipients, allowing the State to seek reimbursement from assets belonging to the deceased recipient's estate. The estate argued that proceeds from a survivorship action should be treated only as third-party recovery funds and therefore subject to more limited reimbursement rules. The State argued that survivorship claims are estate assets and therefore available for full estate recovery.
The Court's Decision
The Appellate Division sided with the State and affirmed the validity of the Medicaid lien. The court concluded that a survivorship cause of action is an asset of the decedent's estate and therefore falls within the broad definition of estate property subject to Medicaid estate recovery. The court emphasized several key principles:
1. Survivorship Claims Are Estate Assets
Under New Jersey's Survival Act, claims that belonged to a person before death survive and become assets of the estate. The estate representative essentially steps into the decedent's shoes and may pursue those claims after death. The court rejected the argument that an unfiled medical malpractice claim was merely speculative and therefore not property. Instead, it concluded that the decedent possessed an interest in the potential claim at the time of death, making it part of the estate.
2. Estate Recovery Is Broader Than Third-Party Recovery
The court explained that Medicaid estate recovery is not limited to reimbursement for injury-related medical expenses. Once a Medicaid recipient over age fifty-five dies, the State may pursue recovery from estate assets for all Medicaid benefits properly paid on the recipient's behalf.
3. Federal Anti-Lien Protections Do Not Apply the Same Way After Death
The estate relied heavily on the United States Supreme Court's decision in Arkansas Department of Health & Human Services v. Ahlborn, which limited Medicaid recovery from a living recipient's settlement. The Appellate Division distinguished that case, finding that the protections applicable to living Medicaid recipients do not prevent estate recovery after death.
Why This Case Matters
This decision has important implications for estate planning and estate administration. Loved ones pursuing survivorship claims should understand that any recovery may be subject to Medicaid estate recovery liens. Failure to investigate outstanding Medicaid claims could complicate estate administration and settlement distributions. Many families assume that a successful medical malpractice or personal injury action will ultimately benefit heirs. This case demonstrates that Medicaid liens may substantially reduce those recoveries when estate recovery laws apply.
The decision highlights the importance of proactive Medicaid planning. Understanding how estate recovery rules interact with litigation claims can help families avoid unexpected consequences and make informed planning decisions.
A Note About Wrongful Death Claims
One important distinction remains. The court noted that wrongful death claims, which seek compensation for the losses suffered by surviving family members, are generally not considered assets of the decedent's estate because those claims belong to the living family members of the deceased. As a result, wrongful death recoveries may be treated differently for Medicaid recovery purposes. Practitioners must carefully distinguish between these causes of action when evaluating potential liens.
Takeaway
The Appellate Division's decision confirms that a survivorship cause of action is an estate asset subject to Medicaid estate recovery. For Medicaid recipients over age fifty-five, the State's recovery rights may extend beyond injury-related medical expenses and reach the broader value of estate assets, including proceeds obtained through survivorship litigation.
Families administering estates that involve Medicaid benefits and pending litigation should carefully evaluate potential estate recovery claims before distributing assets or negotiating settlements.
by Jose D. Roman | Aug 18, 2026 | Estate Administration, Estate Planning, Last Will and Testament, Probate
In a prior post, I explained that you cannot arbitrate a Will dispute in New Jersey — at least not through an arbitration clause buried in the Will itself. That remains the law. But a July 2026 decision from the New Jersey Appellate Division, In re Estate of Roseanne Dyevich, A-1192-24 (App. Div. July 22, 2026), illustrates an important distinction: when the parties themselves voluntarily agree to submit an estate dispute to arbitration, that agreement is enforceable — and the arbitrator's decision is binding and difficult to overturn.
What Happened in the Dyevich Estate
Nicholas and Roseanne Dyevich had four sons: Kevin, James, Thomas, and Michael. After both parents died — Nicholas in 2015 and Roseanne in 2019 — the family found itself in a tangle of litigation. Six separate court matters were pending, involving disputes over the administration of Nicholas's estate, Roseanne's incapacity and guardianship, the disposition of real property, allegations of financial misappropriation, and the conduct of James as executor and guardian.
Rather than litigate all six cases to conclusion, the parties — including a non-family creditor and a corporate entity — agreed to resolve everything through binding arbitration. The arbitrator issued a comprehensive written opinion and a final judgment addressing all of the contested issues. Kevin, who had served as executor, then moved to vacate the award in the trial court, arguing that the other brothers had engaged in misconduct that tainted the arbitration. The trial court denied his motion. Kevin appealed.
The Court's Ruling: Misconduct by a Party Is Not Enough
The Appellate Division affirmed the denial and offered a clear statement of the law. Under the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-23(a), a court may vacate an arbitration award only for six specific reasons. Those grounds are narrow and focused on process, not outcome — things like fraud by the arbitrator, evident partiality of the arbitrator, refusal to hear material evidence, or an arbitrator exceeding their authority.
Kevin's argument was that the defendants had committed fraud — doctoring photographs, destroying financial records, failing to pay the accounting firm. But the court pointed to the critical distinction: under New Jersey law, an arbitration award "may be vacated only for fraud, corruption, or similar wrongdoing on the part of the arbitrators." Rappaport v. Pasternak, 260 N.J. 230, 249 (2025) (quoting Chief Justice Wilentz in Perini Corp. v. Greate Bay Hotel & Casino, Inc., 129 N.J. 479, 548 (1992)). Alleged misconduct by the opposing party does not meet that standard.
The court also declined to consider several arguments Kevin raised for the first time on appeal — including a new claim that the defendants had doctored photographs to influence the arbitrator. Under long-standing New Jersey appellate practice, issues not raised before the trial court are generally not considered on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
The Key Distinction: Voluntary Arbitration vs. a Will Clause
This case is easy to confuse with the Hekemian situation I wrote about earlier, but the two are fundamentally different. In Hekemian, a testator attempted to impose arbitration on beneficiaries through a clause written into the Will — a unilateral document that the beneficiaries never agreed to, could not negotiate, and were never asked to sign. The Appellate Division held that clause unenforceable because it lacked mutual assent and was incompatible with the Probate Code's grant of authority to the Superior Court over Will disputes.
In Dyevich, there was no Will clause at issue. All the parties — represented by counsel, fully aware of the pending litigation — sat down and agreed among themselves to submit their disputes to an arbitrator. That is a voluntary, bilateral agreement to arbitrate. It is exactly the kind of arrangement that New Jersey's arbitration statute is designed to support and enforce.
The rule, stated plainly: a testator cannot force beneficiaries into arbitration through a Will. But parties to an active estate dispute can agree — on their own terms, with full knowledge — to resolve that dispute in arbitration. Once they do, the resulting award carries the weight of a court judgment and can be vacated only in very limited circumstances.
What This Means for NJ Families Navigating Estate Disputes
Estate disputes are expensive, slow, and exhausting — especially when, as in the Dyevich family's case, multiple cases are pending at once and the litigation involves contested guardianships, financial accounts, and real property. Voluntary arbitration can be a practical path to resolution that offers privacy, speed, and finality. New Jersey courts strongly support it.
But finality cuts both ways. The same deference that makes an arbitration award powerful also makes it very difficult to undo. The New Jersey Supreme Court has described private arbitration awards as subject to "an extraordinarily deferential standard of review." Rappaport, 260 N.J. at 250. An award will not be overturned simply because a court might have decided the facts or the law differently. Courts are not in the business of second-guessing arbitrators.
If you are involved in an estate dispute and someone suggests arbitration as a way to resolve it, understand what you are agreeing to in advance. Once the arbitration is complete and the award is entered, your options to challenge it are narrow. You will not succeed by pointing to the other side's bad behavior during the proceedings — that is a matter for the arbitrator, not for the courts, after the fact.
The bottom line from Dyevich is this: arbitration works in the estate context when the parties choose it freely and with full information. What does not work — as Hekemian makes clear — is a testator trying to impose that choice on beneficiaries from beyond the grave.