Most guardianship actions are not contested. The “typical” guardianship action proceeds as follows. Upon receipt of a filed Order Fixing Guardianship Hearing, the plaintiff must:

  • Immediately serve the initial pleadings on the court-appointed attorney by personal service, certified mail, return receipt requested, or, if acceptable to the court-appointed attorney, via facsimile, email or regular mail.
  • No later than 20 days before the hearing date, personally serve a copy of the initial pleadings on the alleged incapacitated person. Personally serve a separate notice advising the alleged incapacitated person that he/she may oppose the action, appear in person or by attorney, and demand a trial by jury. I have included a sample form of mine in the materials.
  • No later than 20 days before the hearing date, personally serve a copy of the initial pleadings on all next-of-kin and parties in interest by certified mail, return receipt requested.
  • No later than 10 days before the hearing date, file a proof of service of the pleadings with the Surrogate.

The court-appointed attorney must file a written report of findings and recommendations at least 10 days prior to the hearing. R. 4:86-4(b).

After the guardianship appointment, the guardian must obtain Letters of Guardianship from the Surrogate within 30 days. Unless expressly waived in the Judgment, the guardian must:

  • Within 90 days of appointment, file with the Surrogate and serve on all interested parties an inventory of the ward’s estate;
  • Annually or as otherwise directed, file with the Surrogate accountings of the ward’s estate;
  • Annually or as otherwise directed, file with the Surrogate reports of the ward’s well-being.

The guardian must also cooperate with the court/Surrogate during the pendency of the guardianship;  keep the Surrogate advised of the ward’s whereabouts, major change in health/status, or death; provide a copy of the death certificate to the Surrogate within 7 days of receipt; monitor the ward’s capacity; and, if necessary, initiate an action for return to capacity. R. 4:86-6(e).

Contested Guardianships

Some guardianships proceed as contested actions, usually in one of two ways. First, the proposed ward may claim that he or she does not lack capacity, and therefore will contest the necessity of a guardian. Second, even if incapacity is conceded, next-of-kin may claim that the plaintiff filing for guardianship is not the appropriate guardian.

When a guardianship action is contested, typically the court will designate the action as a contested matter on the return date of the Order to Show Cause, and the case will proceed as such.

Appointment of a Guardian Ad Litem

Under the Rules, the court may appoint a guardian ad litem at any time prior to the entry of judgment, if “special circumstances come to the attention of the court by formal motion or otherwise.” The guardian ad litem is charged with the responsibility of evaluating the best interests of the alleged incapacitated person, and presenting that evaluation to the court. R. 4:86-4(d).

The duties of a guardian ad litem are distinct from the duties of a court-appointed attorney for the alleged incapacitated person. Whereas the guardian ad litem must evaluate the alleged incapacitated person’s best interests, the court-appointed counsel has a duty to act as “a zealous advocate for the wishes of the client.”  In re M.R., 135 N.J. 155, 174 (1994) (citation omitted). The attorney for the alleged incapacitated person must advocate a result that is consistent with the client’s preferences, rather than advocating for his/her best interests. Pursuant to R.P.C. 1.14, when representing a disabled person, the attorney for the alleged incapacitated person should maintain, to the extent possible, a normal attorney-client relationship:

  1. When a client’s capacity to make adequately considered decisions in connection with the representation is diminished, … the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. Id. at 175. As M.R. instructs, “the attorney’s role is not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes. That role, however, does not extend to advocating decisions that are patently absurd or that pose an undue risk of harm to the client.” Id. at 176.  As R.P.C. 1.14 instructs,
  2. When the lawyer reasonably believes that the client has diminished capacity, is at risk of physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including … seeking the appointment of a guardian ad litem….

Following M.R., the court further explained the role of the court-appointed attorney, as distinct from that of a guardian ad litem:

The court-appointed attorney in an incompetency matter represents the client’s wishes as an attorney would represent a client in any particular dispute. The individual, the subject of the incompetency hearing, has rights, preferences and desires that are not wholly usurped because of the action concerning his or her alleged incompetency…. Perhaps the only limitation placed upon such representation is that the attorney advocate on behalf of the client “unless the decisions are patently absurd or pose an undue risk of harm.” In re Mason, 305 N.J. Super. 120, 125 (Ch. Div. 1997).

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