When is a Guardianship Appropriate?

Do you have a loved one who you believe lacks the mental capacity to care for his or her person and/or property? Is your loved one eighteen (18) years old or older? Did the individual who appears to lack mental capacity fail to put appropriate estate planning documents in place that would have authorized someone to help him or her? Have you ever attempted to speak on your loved one’s behalf either to a medical professional or financial institution only to be told that they cannot speak with you? 

If you said yes to all the above questions, it is likely that the filing of a guardianship petition would be appropriate. 

A guardianship action is a legal proceeding in which you file a petition with the Court requesting that you be appointed as guardian over an individual who is eighteen (18) years old or older who lacks the mental capacity to handle his or her person and/or property (the "alleged incapacitated person”). If the Court makes a determination of mental incapacity and appoints you to act as guardian of the adjudicated incapacitated person (the “incapacitated person”), you will have the right to represent the incapacitated person and to make legal decisions regarding the incapacitated person's personal, medical and/or property concerns.  

To initiate a guardianship proceeding, an Order to Show Cause, Verified Complaint, ancillary documents and a fee (around $200) must be filed with the Surrogate’s Court in the County in which the alleged incapacitated person resides. The Verified Complaint must include specific information as required by N.J.C.R. 4:86-2. Ancillary documents include a Case Information Statement, Certification of Assets, and two (2) Certifications from either a physician or a psychiatrist, or both, who has evaluated the alleged incapacitated person within the thirty (30) days prior to filing the petition.  

Upon filing the petition, the Court will appoint an attorney for the alleged incapacitated person and will set a hearing date. The attorney will meet with the alleged incapacitated person and, perhaps, with others who are familiar with the alleged incapacitated person’s situation, for an interview to prepare a Report to be filed with the Surrogate’s Court. Before the hearing date, other ancillary documents, such as a Proof of Service and a proposed Judgment, must be filed with the Surrogate’s Court. On the hearing date, appearances may be required, depending on the judge. Some judges will not require an appearance by a proposed guardian while others will mandate it. It is usually on this date when the Court makes a decision on the application, unless there is opposition and the matter is more complicated.

If the Court determines that the alleged incapacitated person is in fact incapacitated, unfit and unable to handle his or her own affairs, and appoints you as his or her legal guardian, you will then need to execute the necessary Court forms to qualify (the “qualification paperwork”) to act in such capacity and review the guardianship handbooks and video provided by the Court. Once your qualification paperwork is filed with the Surrogate’s Court, you will receive Letters of Guardianship which you will use to prove to any third party (e.g., medical professionals, banking institutions, brokerages, etc.) that you are the guardian of the incapacitated person and/or property. 

Finally, depending on what the Judgment of Guardianship says, you may be required to annually file with the Surrogate’s Court a Report of Well-Being and some form of accounting (usually depending on the amount of assets owned by the incapacitated person) no later than fourteen (14) days after the anniversary date of the Judgment. You may also be required to file with the Surrogate’s Court a one-time Inventory form within ninety (90) days of the Judgment. 

As you can imagine, the guardianship process can be very tolling on families. Filing a guardianship petition for a loved one who no longer can take care of himself or herself in order for you to legally be allowed to make decisions on his or her behalf is complicated. We at Pashman Stein Walder Hayden, P.C. have assisted many families in such matters. If you need assistance with your loved one’s guardianship petition, please contact us.