Unfortunately, cases arise where a person believes their family member or friend has become incompetent. In order to protect a loved one who you think is incompetent, a legal document or order must exist which gives the complaining party the right to control the alleged incompetent’s affairs. A guardianship proceeding is one way to obtain that legal authority.

Proceeding to Establish Incapacity

In New Jersey, the court has the power to rule on the alleged incapacity of a person. If the court agrees that the person is incapacitated, it appoints a guardian for the person, the person’s estate or  both the person and their estate.

The proceeding starts with a complaint stating why the complainant seeks to have someone else declared incapacitated. The complaint must be supported by affidavits as to:

• All real estate in which the allegedly incapacitated person has or may have an interest
• All of the personal estate to which the person claimed to be incapacitated is entitled, will become entitled, or may become entitled (including income, other kinds of compensation and insurance policies)

The complaint also has to have supporting affidavits of doctors, psychologists or other specific people. These affidavits have to include:

• A physical description of the person claimed to be incapacitated
• The diagnosis and prognosis for the person claimed to be incapacitated, as well as the factual basis for those opinions
• The extent to which the affiant finds the person to be unable to manage themselves or their affairs
• The extent, if any, to which the person claimed to be incapacitated remains able to manage specific areas of their affairs (vocational, financial, medical)

If the complaint and supporting affidavits are sufficient, the court sets a hearing and appoints counsel for the person claimed to be incapacitated. If circumstances warrant, a “Guardian ad Litem” will be appointed to protect the interest of the allegedly incapacitated person.

Alternatives to Guardianship

Guardianship is not the only avenue for dealing with an increasingly incompetent adult. There are two ways that the currently or potentially incompetent person can arrange for their own supervision by a third party.

One is a durable power of attorney, granted to a specific person to control their affairs.

Another alternative is a conservatorship proceeding. This is essentially a voluntary action for a guardian (called a conservator) by someone who is becoming aware that they are losing the ability to control their own affairs (conservatees). Because the conservatees already have lost competence, appointment of a conservator requires a court order.

Get Help

Establishing the incapacity of a person can be quite complicated. Simply obtaining the information required in the supporting affidavits can be time consuming and the complaining party has to make sure that the affidavits supply all the information that the law requires. If the allegedly incapacitated person is receiving federal benefits or services as a developmentally disabled person, the task becomes even more complex.

 

KingBarnes understands that many guardianship actions are emotionally taxing, as one family member is frequently claiming that another is incapable of self-care. If you think a friend or relative needs a guardian, or if you think that you might need a conservator, KingBarnes is here to help you.