Guardianship 101: A Practical Guide to Guardianships in New Jersey
Guardianship 101: A Practical Guide to Guardianships
in New Jersey
By Donald D. Vanarelli, Esq.
When an individual is unable to manage his or her personal and/or financial affairs as a result of age or infirmity, a guardianship action may be commenced, seeking to have that person declared incapacitated and appointing a guardian for him or her. New Jersey statutes define an “incapacitated individual1” 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.
Background / History
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).
Filing a Guardianship Action
Guardianship actions are filed with the Chancery Division of the Superior Court. The process begins when an individual, typically a family member, believes that a person is no longer able to manage his or her personal and/or financial affairs. An action for guardianship is instituted by filing the following papers with the court:
Pursuant to R. 4:86-1 of the New Jersey Rules of Court, the complaint must state the alleged incapacitated person’s name, age, domicile and address of the plaintiff (the person filing the guardianship), the allege incapacitated person, and the alleged incapacitated person’s spouse, if any. It must include the plaintiff’s relationship with the person alleged to be incapacitated, and the plaintiff’s interest in the action. The names, addresses, and ages of the alleged incapacitated person’s children, parents, and nearest of kin must be provided, as well as information regarding the institution in which the alleged incapacitated person resides, if applicable. If the alleged incapacitated person has executed a power of attorney or health care directive, or if he or she is the beneficiary of a trust, this information must also be provided.
(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:
The 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.
In some cases, the person alleged to be incapacitated (or a third party) refuses to allow an examination to take place. In that case, in lieu of the physicians’ affidavits, the plaintiff may file an affidavit of a physician or psychologist, stating that he or she has attempted to examine the alleged incapacitated person but the alleged incapacitated person (or those in charge of him or other) has refused to allow the examination.
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 will appoint an attorney to represent the person alleged to be incapacitated, who will be directed to personally interview the alleged incapacitated person, inquire of persons with knowledge of his or her circumstances, physical and mental state, and property, and inquire into estate documents that the alleged incapacitated person might have. R. 4:86-4. The court-appointed attorney then issues a report, making recommendations regarding the issue of incapacity and related issues.
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 apro 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.
1 In 1997, the New Jersey Legislature amended N.J.S.A. 3B:1-2. The amendment replaced the term “mentalincompetent” with “incapacitated person” and applied same to the entire statute. In re McNierney, 2010 N.J. Super. Unpub. LEXIS 2307 (Ch. Div. 2010).
Donald D. Vanarelli, Esq., with offices in Westfield NJ, is a Certified Elder Law Attorney (by NAELA, accredited by the ABA), an Accredited Professional Mediator and an Accredited VA Attorney. Mr. Vanarelli was selected as a “Super Lawyer” in years 2007–2011 and is a founding member of the New Jersey Elder Mediation Center. Specialized practice areas include: probate law, estate planning,estate administration, estate litigation, guardianships, and special needs trusts.
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