Right to counsel

If an adult or their legal guardian refuse to consent to protective services or if the adult is unable to consent, the department may seek court authorization to provide services involuntarily.  In such matters, the adult has the right to counsel regardless of indigency.  However, the right to counsel does not appear to extend to matters related to the review of protective services orders.  Accordingly, the right to counsel is classified as “qualified.”

Generally

It appears that protective services for adults in New Jersey are limited to adults 18 years of age or older who reside in a “community setting” (i.e., not in a residential facility). N. J. Stat. Ann. § 52:27D-407.

“Protective services” are defined under the code as follows: 

voluntary or court-ordered social, legal, financial, medical or psychiatric services necessary to safeguard a vulnerable adult’s rights and resources, and to protect a vulnerable adult from abuse, neglect or exploitation. Protective services include, but are not limited to: evaluating the need for services, providing or arranging for appropriate services, obtaining financial benefits to which a person is entitled, and arranging for guardianship and other legal actions.

Id.  In terms of consensually provided services, either the vulnerable adult or their legal guardian may provide consent. N. J. Stat. Ann. § 52:27D-411.

Where no consent or inability to consent

Right to counsel where involuntary services sought

Where “the adult refuses or is unable to consent to the services, the county director or his designee shall petition a court of competent jurisdiction for an order authorizing the provision of protective services.” § 52:27D-414(a).  In such matters, there is a right to counsel regardless of indigency, as the statute states, “The adult has the right to an attorney of his choice or the court shall appoint counsel.” Id. at (b).

Review of protective services order

No right to counsel found

The statute provides that a vulnerable adult “has the right to bring a motion for review of a court order issued pursuant to this act, notwithstanding a finding by the court of a lack of capacity to consent to protective services. N. J. Stat. Ann. § 52:27D-417.

Department may initiate guardianship or conservatorship matter

The department is also authorized to initiate guardianship or conservatorship proceedings. See N. J. Stat. Ann. § 52:27D-416.  For more information about the right to counsel for adults subject to guardianship or conservatorship matters, please see New Jersey, Legislation, Guardianship/Conservatorship of Adults – Protected Person.