Undoubtedly, one of the hardest situations people face today is watching a loved one become unable to care for themselves or manage their own affairs due to illness or advanced age. These situations show the importance of proper estate planning, including the need for a power of attorney. The reason being that once a person becomes mentally incapacitated, they can no longer execute a power of attorney. However, New Jersey law provides the ability for an individual to become the legal guardian of an incapacitated person. This article will provide a very general overview of the process to have a guardian appointed for an incapacitated person.
The process is not an easy one, and can be very difficult to navigate on your own. Guardianships of an alleged incapacitated person in New Jersey are governed by Court Rule 4:86. To start, the alleged incapacitated person must be examined by two medical professionals, either two physicians, or one physician and one licensed practicing psychologist. The medical professionals must provide an affidavit or certification as to the person’s incapacity, stating among other things, “whether the person is unfit and unable to govern himself or herself.”
The medical professionals’ affidavits must be submitted to the Court, attached to a Verified Complaint. The Verified Complaint is filed with the County Surrogate’s Court, and opens the process to the Superior Court – Probate Part, asking for the appointment of the applicant, another individual, or a neutral third-party professional, as guardian of the alleged incapacitated person. In addition to the affidavits of the medical professionals, the applicant must submit an affidavit detailing the “nature, description, and fair market value” of the estate of the alleged incapacitated person. This includes, but is not limited to, any real estate, bank accounts, stocks, bonds, or any other security owned, and any debts owed by the alleged incapacitated person. Certain guardianship applicants may also be required to submit to additional background check guidelines. You can find an article regarding those additional background guidelines on our website, here: NEW JERSEY UPDATES GUARDIANSHIP RULES TO PROVIDE BETTER PROTECTION
At the onset of the matter, the Court will also issue an Order to Show Cause. This Order sets forth a date and time for any interested party to appear and state reasons why the appointment of a guardian should or should not be allowed. The Order to Show Cause will also set deadlines for those interested parties to file a response to the applicant’s Verified Complaint, should they choose.
The Order will also appoint an attorney to act as legal counsel for the alleged incapacitated person. The role of the appointed attorney is to represent the interests of the alleged incapacitated person. The attorney will personally interview the alleged incapacitated person and any individuals with knowledge of the alleged incapacitated person and their physical or mental state. The attorney is also tasked with locating any Will, Power-of-Attorney, or Health Care Directive of the alleged incapacitated person and any interest they may have in another’s Will or Trust. The court appointed attorney will then provide the Court with a report, making recommendations related to the alleged incapacitated person. When the matter is concluded, that attorney is normally compensated from the estate of the alleged incapacitated person.
This is a very general overview of the Guardianship process in New Jersey. It is important that the process is completed in accordance with the Court Rules. If you feel that a loved one, or someone you care about, is in need of a guardian, please contact Ward, Shindle & Hall, to discuss the matter with a member of our legal team.