How to Establish Guardianship for an Incapacitated Adult in New Jersey

When adults lose the ability to manage their affairs due to cognitive decline, disability, or injury, guardianship may become necessary. The legal process to establish guardianship involves multiple steps designed to protect the rights of the allegedly incapacitated person while ensuring they receive proper care and support.

The Simone Law Firm assists families throughout New Jersey and Pennsylvania with these complex matters, combining legal precision with genuine concern for the human aspects involved.

Defining Incapacity in Legal Terms

The foundation of any guardianship case rests on how the law defines and recognizes incapacity.

Under New Jersey law, an “incapacitated person” is defined as someone who lacks sufficient capacity to govern themselves or manage their affairs. This determination is not made lightly, courts require clear and convincing evidence that the individual:

• Cannot grasp information relevant to making decisions
• Cannot communicate decisions regarding their health, safety, or financial matters
• Cannot manage basic needs such as food, shelter, healthcare, or safety
• Presents a risk to themselves or others without assistance

This legal standard prioritizes the autonomy of individuals while recognizing situations where protection becomes necessary. The courts generally prefer the least restrictive intervention that adequately addresses the person’s needs.

Types of Guardianship to Consider

Before initiating the guardianship process, it is important to determine which type of guardianship would best serve the needs of the incapacitated person.

General (Plenary) Guardianship

This comprehensive form grants authority over all aspects of the incapacitated person’s life, including healthcare decisions, living arrangements, and financial management.

Limited Guardianship

This more targeted arrangement restricts the guardian’s authority to specific areas where assistance is needed. The incapacitated person retains decision-making rights in other aspects of their life. For example, they might need help managing finances but remain capable of making healthcare decisions.

Guardianship of the Person

Focused solely on personal matters such as healthcare, living arrangements, and daily care, this type does not include authority over financial assets or property.

Guardianship of the Estate

This arrangement addresses only financial and property matters, leaving personal decisions to the individual or another guardian.

Courts generally favor the least restrictive option that adequately protects the individual while preserving as much independence as possible.

The Legal Process for Establishing Guardianship

The path to establishing guardianship follows a series of formal legal steps, each designed to protect the rights of the allegedly incapacitated person.

1. Filing the Initial Complaint

The process begins with filing a verified complaint in the Superior Court, Chancery Division, Probate Part in the county where the allegedly incapacitated person resides. This document must include:

• The name, age, and address of the allegedly incapacitated person
• The relationship between this person and the plaintiff (person filing for guardianship)
• The reasons why guardianship is necessary
• The names and addresses of the allegedly incapacitated person’s spouse, adult children, parents, and siblings (or nearest known relatives if none of these exist)
• Information about the person’s assets and income, if known
• A statement regarding any existing advance directives, powers of attorney, or trusts

The complaint must be accompanied by affidavits or certifications from medical professionals documenting the alleged incapacity.

2. Medical Documentation Requirements

New Jersey requires two affidavits—either from two physicians or from one physician and one licensed psychologist.

These medical statements must:

• Be based on an examination performed within 30 days of filing
• Describe the person’s condition and functional limitations
• Explain how these limitations affect decision-making capacity
• Provide a prognosis and whether the condition is permanent or temporary
• Specify whether the person can attend court proceedings

This documentation forms the foundation of the court’s determination regarding capacity and helps guide the scope of guardianship if granted.

3. Court Appointment of Counsel and Guardian Ad Litem

Upon receiving a properly filed complaint, the court takes several important steps to protect the allegedly incapacitated person:

• Appointment of an attorney to represent the allegedly incapacitated person
• In some cases, appointment of a temporary guardian to address immediate needs
• Setting a hearing date to determine incapacity
• Ordering the plaintiff to serve copies of all documents on interested parties

The court-appointed attorney serves as an advocate for the allegedly incapacitated person, investigating the situation and representing their interests and preferences.

4. Notice Requirements

All interested parties must receive proper notice of the guardianship proceeding, including:

• The allegedly incapacitated person
• Their spouse, adult children, and parents
• Any existing agent under a power of attorney or healthcare directive
• The administrator of any facility where the person resides
• Any other parties the court deems appropriate

This notice must be accompanied by a copy of the complaint and supporting documents. Proper service ensures that all relevant parties have an opportunity to participate in the proceedings.

5. The Court Hearing

The guardianship hearing provides an opportunity for all interested parties to present evidence regarding:

• Whether the person meets the legal standard for incapacity
• Who would be most appropriate to serve as guardian
• What type and scope of guardianship would best meet the person’s needs

The allegedly incapacitated person has the right to:

• Attend the hearing (unless medically unable)
• Present evidence
• Cross-examine witnesses
• Request a jury trial on the issue of incapacity

The court will carefully consider all evidence, including medical documentation, testimony from family members and healthcare providers, and the recommendations of the court-appointed attorney or guardian ad litem.

6. Court Judgment

If the court determines by clear and convincing evidence that the person is incapacitated and requires a guardian, it will issue a judgment that:

• Declares the person incapacitated
• Appoints a guardian of the person, estate, or both
• Defines the specific powers and limitations of the guardian
• Sets requirements for reporting to the court
• Establishes any bond requirements for financial guardianship

This judgment becomes the guardian’s legal authority to act on behalf of the incapacitated person and defines the scope of their responsibilities.

7. Post-Appointment Requirements

After the appointment, the guardian must fulfill several important obligations:

• Taking an oath or affirmation to faithfully discharge their duties
• Posting a bond if managing financial assets (the amount is determined by the court)
• Filing an initial inventory of the incapacitated person’s assets
• Submitting regular reports to the court regarding the incapacitated person’s condition and finances

These requirements ensure ongoing court supervision and protection for the incapacitated person.

Alternatives to Consider Before Pursuing Guardianship

Guardianship should generally be considered a last resort when other less restrictive options cannot provide adequate protection.

Power of Attorney

If the individual still has sufficient capacity to execute legal documents, a durable power of attorney allows them to designate someone to manage their financial affairs if they become unable to do so.

Healthcare Proxy or Advance Directive

Similar to a power of attorney but focused on medical decisions, these documents allow individuals to designate someone to make healthcare decisions if they become unable to do so.

Supported Decision-Making

This emerging alternative involves creating a network of supporters who assist the individual with decision-making without removing their legal rights. The person retains ultimate decision-making authority but receives the support needed to understand options and communicate choices.

Representative Payee Programs

For individuals who primarily need assistance managing government benefits, programs like Social Security’s representative payee system provide targeted financial management without the broader implications of guardianship.

Trusts

Establishing a trust can provide structured management of assets without requiring a finding of incapacity. Various trust arrangements can address different needs and circumstances while preserving elements of control for the individual.

Contact The Simone Law Firm for Guardianship Assistance

Our attorneys are ready to help with your guardianship case. We guide clients through the entire process, from initial consultation through court proceedings and ongoing compliance requirements.

Contact our office to schedule a consultation. We serve clients throughout New Jersey and Pennsylvania, with offices in Cinnaminson and Cape May.

Frequently Asked Questions

How long does the guardianship process take?

The process typically takes 3-6 months from filing the complaint to final judgment, though complex or contested cases may take longer.

Can the allegedly incapacitated person contest the guardianship?

Yes, they have the right to oppose the guardianship, present evidence of capacity, and request alternatives to guardianship. The court-appointed attorney will help represent their position.

Can family members object to the guardianship?

Yes, interested parties may file objections to the need for guardianship or to the proposed guardian. The court will consider all relevant perspectives.

Does guardianship last forever?

No, guardianship can be modified or terminated if the incapacitated person regains capacity or if circumstances change. The court retains oversight and can review the arrangement upon request.

Who can serve as guardian?

The court typically gives preference to spouses, adult children, parents, or other family members, but may appoint professional guardians or agencies if no suitable family member is available or if family conflict exists.

What happens if the guardian cannot continue serving?

The guardian may petition the court to resign, and the court will appoint a successor guardian. Guardians should consider naming potential successors in advance to ensure continuity of care.