When a person can not continue to manage her own affairs due to a physical or mental incapacity, another person needs to have the power to do so. If the incapacitated person had executed a valid power of attorney prior to their incapacity, the individual incapacitated person chose and appointed as their agent has that power. However, once a person is no longer able to take care of themselves, they can no longer execute a valid power of attorney. In that case, an application for guardianship must be made to the Superior Court of New Jersey to have a trusted family member, friend or professional to handle the person’s affairs. Unless the person appointed someone prior to their incapacity through a power of attorney or the court appoints a guardian there will be no one with legal authority to act on behalf of the incapacitated person.
A guardianship proceeding is an involved and difficult process where the court must be satisfied that the person is indeed incapable of managing their own affairs, and then determine the appropriate person to appoint as their guardian to make decision for the mentally incapacitated person (who is called a “ward”). This is commonly needed for older adults who have become incapacitated due to physical or mental illness.
A guardianship must be established when a person has lost capacity and there is no one who can lawfully act for him or her. Guardianships are divided into two types, the guardianship over the person and guardianship over the person’s property. Guardianship of the person authorizes the guardian to make personal and medical decisions for the incapacitated person. Guardianship of the property authorizes the guardian to make financial decisions for the incapacitated person. While these are legally two separate roles which can be filled by separate individuals, most often one individual will be appointed as guardian of both the person and the person’s property. There can also be more than one guardian, where two or more people are appointed as co-guardians and must act together. The law allows any responsible adult to be a guardian, but the law gives priority to the spouse of the incapacitated person, and if the spouse is unwilling or unable, priority is then given to an adult child.
An action for guardianship is commenced in Superior Court of New Jersey in the county where the prospective ward resides. In order to get a guardian appointed the court will review the personal, medical, and financial information regarding the ward. Every guardianship action starts with a complaint filed in Superior Court of New Jersey in the county where the incapacitated individual is domiciled. The complaint must state the petitioner’s name, age, domicile and address, the mentally incapacitated person’s name, age, domicile and address, a list of the names and addresses of immediate family members, her finances, and why the guardianship is needed.
The complaint, must include two physician certifications based on examinations of the incapacitated person within the last 30 days and an affidavit by the person seeking to have a guardian appointed, which provides the details of the incapacitated person’s assets, including the description and value of their real estate, financial accounts and income.
The judge will set a hearing date when she will decide if a guardian will be appointed and who the guardian should be. The order setting the hearing date will also state who must be notified of the hearing, and will appoint an attorney to represent the interests of the prospective ward. The attorney appointed by the court will personally interview the incapacitated individual, review medical reports and records, meet with the attesting physicians, and meet with family members to determine whether he or she is indeed incapacitated. This attorney will meet with the petitioning family member as well, and file a report with the court indicating whether the guardianship is appropriate, and who the guardian should be.
The court will then determine if the prospective ward requires a guardian and who the guardian should be. Once the guardianship has been granted by the court, the proposed guardian must appear before the county surrogate to execute qualification forms, then the letters of guardianship will be issued by the surrogate. Often the guardian will also be required to post a bond to insure proper management of the ward’s assets.
Call (973) 890-0004 or e-mail us to set up an appointment to discuss your guardianship needs.