Guardianship Lawyers in Ocean County, New Jersey

Guardianship explained by NJ Guardianship Lawyer

Monmouth County Guardianship lawyers here at Riviere Cresci & Singer know what it means to be guardian. A guardianship is a court given right to a court appointed person (usually a family member) to be responsible for the financial and health decisions of someone who is incapable of making these decisions and who has not made alternate arrangements through the execution of a valid Financial Power of Attorney and Living Will/Advanced Health Care Directive.

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When someone, due incapacity, cannot manage his/her personal and/or financial affairs as a result of age or infirmity, a guardianship action may be commenced in New Jersey Superior Court and an experienced Monmouth County guardianship lawyer can assist you in the process. The guardianship action will seek to have the person at issue declared incapacitated and furthermore, will appoint a guardian for him/her. If you feel that a person is on the brink of being incapacitated or that other siblings/persons might try to take advantage of that person; a timely action for guardianship can prevent irreversible loss and harm to the person and their finances. There have been many case of “granny snatching,” in New Jersey. “Granny snatching,” is the unauthorized removal or retention of an older person, which may be undertaken to pursue guardianship in another state or to avoid a guardianship in the state from which the elder was snatched. Typically if someone lives in New Jersey the New Jersey Courts have jurisdiction over guardianship actions based upon their “parens patriae” power, which is derived from the traditional authority of the sovereign to protect those persons within the state who cannot protect themselves because of a legal disability. In re Grady, 85 N.J. 235 (1981).

New Jersey statutes define an “incapacitated individual” as follows:

“Incapacitated individual” means an individual who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs. The term incapacitated individual is also used to designate 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 he lacks sufficient capacity to govern himself and manage his affairs.

Some of the reasons one may want to seek guardianship are:

  • Illness or Trauma. The alleged incapacitated person has suffered a serious illness or trauma and cannot manage financial and/or personal care needs as a result.
  • Abuse. The alleged incapacitated person is suffering physical or financial abuse.
  • Susceptibility to Fraud or Abuse. The alleged incapacitated person is being taken advantage of or is highly susceptible to fraud and abuse.
  • Medical Treatment. The alleged incapacitated person needs medical treatment but lacks the ability to give informed consent and has no directive or irrationally refuses medical treatment.
  • Living Trusts or Other Plans Abused. The alleged incapacitated person has a living trust but the trustee is either failing to care for him or has taken advantage of trust assets.
  • Failed Durable Power of Attorney. The alleged incapacitated person has executed a Durable Power of Attorney, but the attorney-in-fact has failed to act or has taken advantage of the alleged incapacitated person.
  • Estate and Tax Planning. Estate and tax planning is needed to provide estate protection, but the alleged incapacitated person lacks capacity to execute necessary documents or to take other planning steps.
  • Asset Preservation and Long-Term Care. Asset preservation planning is necessary because the alleged incapacitated person is in or entering long-term care and protective planning must be done for the benefit of the spouse, who will continue to live at home. Because the alleged incapacitated person lacks capacity to execute necessary planning documents or take other planning steps, court approval of such steps may be necessary.

Guardianship actions are filed with the Chancery Division of the Superior Court. The process is initiated when a person thinks that another person is unable, due to incapacity, to manage his/her personal and/or financial affairs. An action for guardianship starts by an application with the court and such application is made by a complaint.

(1) Complaint:

Pursuant to R. 4:86-1 of the New Jersey Rules of Court, a petition by way of Verified Complaint and Order to Show Cause is filed with the Court, which asks the Court to render its decision. A guardianship action involves a court determination that the individual is “an incapacitated person who is unfit and unable to govern himself or herself and manage his or her affairs.” R. 4:86-2(b)(6). In the event that a determination of incapacitation is made, the court may appoint a “guardian of the person”, to make personal decisions such as living arrangements and health decisions, and/or a “guardian of the property” to manage the incapacitated person’s estate and finances. As set forth below, the court may also order a limited guardianship.

R. 6:86-2(a) directs that, in addition to the complaint, the plaintiff must file an affidavit regarding all real estate in which the alleged incapacitated person has, or may have, a present or future interest; and the personal estate he or she will or probably may become entitled to, including assets and income. The rule requires the plaintiff to provide “as much information as can be secured in the exercise of reasonable diligence;” if the financial information is unavailable to the plaintiff, an explanation must be provided.

he plaintiff must also supply the affidavit of two physicians, or one physician and one licensed practicing psychologist, to support the guardianship application. R. 4:86-2(b). The affidavits must be based upon a personal examination that was made within 30 days of filing the complaint (subject to relaxation for good cause). The following information must be included: (1) the date and place of the examination; (2) whether the affiant has treated or merely examined the alleged incapacitated individual; (3) whether the affiant is disqualified [based on a relationship to the individual]; (4) the diagnosis and prognosis and factual basis therefore; (5) … a physical description of the person examined … (6) the affiant’s opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incapacitated person upon which this opinion is based… and (7) if applicable, the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as residential, education, medical, legal, vocational or financial decisions.

The instance may arise that the person alleged to be incapacitated (or a third party) refuses to allow the alleged incapacitated person to be examined. If this is the case the workaround is to file an affidavit from a physician or psychologist, stating that he/she has attempted to examine the alleged incapacitated person but the alleged incapacitated person, or some other persons, refuses to allow the examination to take place.

After these pleadings are filed, and a sufficient showing is made that further proceedings are warranted, the court will enter an order fixing a hearing date. R. 4:86-4. That order will require at least 20 days’ notice of the guardianship action be given to the alleged incapacitated person and interested parties.

The court-appointed attorney will conduct an investigation, including interviews with the allegedly incapacitated person, the proposed guardian and all other interested parties and will examine medical and financial records of the allegedly incapacitated person. This is done to insure that no one is attempting to take advantage of or mistreat the allegedly incapacitated person. The court-appointed attorney will prepare a report of his or her findings, which will include recommendations on the person’s capacity and that individual’s wishes. The court-appointed attorney’s fees are generally paid from the estate of the person alleged to be incapacitated, although upon a showing that the alleged incapacitated person’s assets are insufficient, the court may direct other payment arrangements, and may order the appointment of the attorney on a pro bono basis.

At the guardianship hearing, the court may take the testimony of the plaintiff or others. R. 4:86-6. If appropriate, the court will enter a judgment declaring the person to be incapacitated, and appointing a guardian of the person, the estate, or both.

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