Filing a Guardianship Action

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.

(2) Financial Certification / Affidavit:

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.

(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.

The Court Appointed Attorney

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.

The Hearing

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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