When an individual is unable to manage their own affairs and they do not have medical and financial powers of attorney in place a court ordered guardianship is required to give someone legal authority to make decisions for the incapacitated person. This is because in New Jersey, individuals are presumed competent unless a court determines otherwise. A close family relationship does not give someone legal authority to act on the other adult person’s behalf. A person is adjudicated as incapacitated when they are unable to manage personal affairs due to mental illness, physical illness, disability, substance abuse, or other causes.
Guardianship is actually a court case in which someone steps forward and asks the court to appoint a guardian. In many cases the person filing the case is the person asking to be appointed. However, it can be initiated by a third party such as a hospital who asks the court to appoint a guardian.
Physician’s Certifications
The first step in the process is gathering proof that the person needs a guardian. Typically, the plaintiff (person filing the case) must obtain two physician certifications that provide a diagnosis of the individual’s condition and an opinion on whether the person is unable to manage their personal affairs. The certifications must be current and should not be more than 30 day old at the time the guardianship case is filed, unless the court grants an exception.
Initial Guardianship Court Filing
Once you have your physician certifications it is time to file the guardianship case. The initial court filing includes the following:
- Verified Complaint;
- Order to Show Cause;
- Case Information Statement;
- Certification of Assets (of the incapacitated person);
- Certification of Criminal and Civil Judgment History (of the proposed guardian);
- Physician or Psychologist Certification;
- 2nd Physician or Psychologist Certification or IEP; and
- Proposed Judgment of Incapacity and Appointment of Guardian.
Post Filing Process
Once all required documents are filed, the court appoints an attorney to represent the interests of the alleged incapacitated individual. The attorney will review all submitted documents, investigate the individual’s circumstances, and make a recommendation to the court regarding the individual’s capacity in the form of a formal report.
The court papers must also be served on the incapacitated person and all next of kin. Proof of service also needs to be filed with the court.
The Hearing
If there is no dispute concerning the person’s incapacity and who should be the guardian the court may not require a hearing and decide the matter “on the papers.” If the court requires a hearing the court will hear testimony from witnesses and review the evidence in the record. If the court finds that the individual is indeed incapacitated and the proposed guardian is appropriate and able to handle the responsibility, it will issue an order appointing a guardian to manage the person’s personal and/or financial affairs.
