Initiating a Guardianship Action

A step-by-step guide to initiating a guardianship action in New Jersey follows.

Documents To Be Filed:

A guardianship action is initiated by submitting the following documents to the Surrogate for filing, with the required filing fee:

  • Order Fixing Guardianship Hearing
  • Verified Complaint
  • Certification of Assets
  • Certifications of Physician or Psychologist
  • Case Information Statement

Each of these required forms is discussed in detail below.

If the application is accepted for filing, the Order Fixing Guardianship Hearing will be completed by the court, and the filed papers will be returned to the plaintiff’s counsel for service upon the alleged incapacitated person, next-of-kin and parties in interest.

Order Fixing Guardianship Hearing:

The Order Fixing Guardianship Hearing Date and Appointing Attorney for Alleged Incapacitated Person (“Order Fixing Guardianship Hearing”) must be submitted. This form is submitted by the plaintiff, but contains blank spaces for the court to complete. It includes notice requirements, a provision for the appointment of a court-appointed attorney for the alleged incapacitated person (unless the alleged incapacitated person is represented by counsel), and provisions for parties in interest to be heard. R. 4:86-4. The revised Rule now states that the Order Fixing Guardianship Hearing “shall require that any proposed guardian complete guardianship training.” R. 4:86-4(a)(6).

Verified Complaint:

The model forms do not contain a form Verified Complaint; I have included a sample of one of my own in the materials. R. 4:86-2 sets forth the required contents:

  1. the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person’s spouse, if any;
  2. the plaintiff’s relationship to the alleged incapacitated person;
  3. the plaintiff’s interest in the action;
  4. the names, addresses and ages of the alleged incapacitated person’s children, if any, and the names and addresses of the alleged incapacitated person’s parents and nearest of kin, meaning at a minimum all persons of the same degree of relationship to the alleged incapacitated person as the plaintiff;
  5. The name and address of the person or institution having the care and custody of the alleged incapacitated person;
  6. if the alleged incapacitated person has lived in an institution, the period or periods of time the alleged incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined; and
  7. the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directed executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person.

As set forth above, the rule has been revised to clarify that those within the same degree of kinship as the plaintiff to the alleged incapacitated person must be identified.

Certification of Assets:

R. 4:86-2(b) requires that the guardianship filing include a certification regarding the alleged incapacitated person’s assets The Rule requires that the certification identify “the nature, description, and fair market value” of the alleged incapacitated person’s:

  • Real estate (including property he or she has or in which he/she may have a present or future interest);
  • Personal estate (stocks, bonds, bank accounts, receivables, personal property, etc.);
  • Liabilities/debts; and
  • Income.

The Model Form developed by the State of New Jersey provides a chart identifying these categories.

Certification of Physician or Psychologist:

The guardianship application should include certifications from two (2) physicians, or one physician and one practicing psychologist, who have made a personal examination of the alleged incapacitated person within thirty (30) days of the filing of the action; that time period may be relaxed by the court upon an ex parte showing of good cause. Included in the materials is a sample of a certification that I have used to seek the relaxation of the time period.

Each doctor’s certification must contain specific information, which the Model Form’s fill-in-the-blank design makes largely self-explanatory, but the physician/psychologist must ultimately render an 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.” R. 4:86-2(b)(2)(F). This must include the circumstances, conduct and medical history of the alleged incapacitated person on which the opinion is based. If the alleged incapacitated person retains capacity to manage certain areas of his/her affairs (such as residential, educational, medical, legal, vocational or financial decisions), that information should be included in the certification. R. 4:86-2(b)(2)(G). Finally, if the physician/psychologist is of the opinion that the alleged incapacitated person is incapable of attending the guardianship hearing, the reasons should be set forth. R. 4:86-2(b)(2)(H).

Case Information Statement:

The required Adult Guardian Case Information Statement is a new requirement for an initial pleading with the Chancery Division, Probate Part. R. 4:86-2(b)(3). According to the Model Form, an initial pleading will be rejected for filing if the CIS is not included.

According to the Rule, the CIS “shall include the date of birth and Social Security number of the alleged incapacitated person.” In contrast, in my experience to date, some courts have required that an initial guardianship pleading include a certification that confidential personal identifiers have been and will be redacted from documents submitted to the court, in accordance with R. 1:38-7(b).

Proposed Judgment:

No later than ten days prior to the hearing, the plaintiff must file with the Surrogate a proposed Judgment of Legal Incapacity and Appointment of Guardian of the Person, or Guardian of the Person and Estate. R. 4:86-6(d).

If the plaintiff is unable to obtain physician/psychologist certifications because the alleged incapacitated person (or someone in charge of him/her) has refused or is unwilling to allow an examination, R. 4:86-2(c)(2) permits the submission of a certification from a physician/psychologist to that effect. The court, in turn, may order the alleged incapacitated person to submit to an examination.

Donald D. Vanarelli, Esq. is certified as a National Certified Guardian by the Center for Guardianship Certification (CGC). The CGC identifies persons who have achieved the requisite level of knowledge, skill, experience, and understanding of the ethical principles and standards of good practice to act as professional guardians.

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