(3) Physicians’ Certifications / Affidavits:

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.

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