People today are living longer than in generations past. As a result, more and more families are confronting the reality of long-term care of elderly parents and loved ones. With advancing age can come diminished mental capacity. What happens to those who had neither the foresight nor an opportunity to establish crucial lifetime planning tools such as a Power of Attorney, Advance Health Care Directive or a Revocable Living Trust? If they are stricken with an injury or condition rendering them incapacitated and unable to manage their own affairs, the family may need to resort to guardianship proceedings.
Our attorneys recognize these issues affecting our clients and their families and advise them accordingly. If you have reason to believe or have been advised by a health care professional that a family member or loved one is incapacitated, and valid financial and medical planning documents are not in effect, you may need to file an action to have that family member declared incapacitated and a guardian appointed.
Guardianship actions in New Jersey are filed in Probate Court and governed by Rule 4:86 and N.J.S.A. 3B:12-24 et seq. Since there is a legal presumption that every individual is competent until adjudicated otherwise, a Court will appoint a guardian only if a person qualifies as an “incapacitated individual.” N.J.S.A. 3B:1-2 defines an “incapacitated individual” as someone who is impaired by reason of mental illness or mental deficiency to the extent that he or she lacks sufficient capacity to govern himself and manage his or her affairs. The term is also used to designate someone who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism or other cause (except minority) to the extent that the person lacks sufficient capacity to govern him or herself and manage their affairs.
How do you initiate the guardianship process? What proofs are required? What issues must be considered? The following will help you navigate through the procedural steps.
You begin by filing a petition by way of Verified Complaint and Order to Show Cause, which asks the Court to decide two fairly narrow issues; is the individual incapacitated and, if so, who should serve as his guardian? Typically, the petition proposes you (or other suitable person) be appointed as guardian of the alleged incapacitated person’s (“AIP”) person and/or property. The Verified Complaint must be accompanied by certifications from at least two physicians familiar with the AIP’s condition. The physicians might be a family doctor, treating physician, pediatrician, neurologist or psychiatrist. The physicians must conduct an evaluation of the AIP, attest to the mental impairment or deficiency, and provide details regarding the AIP’s ability to govern himself and manage his affairs. The Verified Complaint must also be accompanied by a certification stating the nature and value of the AIP’s assets, if any, as well as any actual or anticipated sources of income.
Once the Verified Complaint is filed, the Court will appoint an attorney to advocate the interests and stated wishes of the AIP (to the extent they can be ascertained). The Court-appointed attorney must review the pleadings and make inquiries of people having personal knowledge of the AIP’s condition and property. The attorney has a duty to interview as many people as he or she deems necessary to form a conclusion about whether the allegations in the Verified Complaint are accurate. The attorney must also meet with his or her client on at least one occasion throughout the proceedings. As you might think, the Court does not take lightly issuing an Order that takes away a significant portion of one’s liberties. Thus, the function and responsibilities of the Court-appointed attorney are of utmost importance to the Court. Once the attorney has conducted a thorough review of the relevant issues, he or she must file a report summarizing his or her findings on the competency of the AIP and suitability of the proposed guardian and make a recommendation to the Court.
The attorney may also file an Affidavit of Attorney Services requesting reasonable fees and costs for services rendered in the matter. Generally, that attorney’s fees are paid out of the AIP’s estate.
The judge will review all of the paperwork filed in connection with the matter and conduct a hearing, at which time he or she will entertain oral argument from the petitioner’s attorney and Court-appointed attorney. While a physician’s certification is typically sufficient on its face, the judge may require the physicians to appear to give witness testimony to clarify or expand upon the information contained in their certifications. In addition, the judge will generally require the AIP to appear at the hearing and be gently interviewed by the judge, unless the AIP’s appearance in Court would be detrimental to his or her health and well being. Historically, it was relatively simple to excuse the AIP from having to appear in Court. However, a stricter trend is developing where judges are increasingly requiring an appearance by the AIP as a protective measure. After considering all the evidence and hearing from the interested parties, the judge will issue an Order granting or denying the petitioner’s application.
If the judge issues an Order declaring the AIP to be legally incapacitated, that person becomes a ward of the Court and a suitable guardian is appointed to take custody of the ward’s person and/or property. The guardian must appear before the county surrogate to qualify and be issued Letters of Guardianship. The court Order usually requires the guardian to secure a surety bond. The bond will protect the ward against a loss of his property if the guardian commits an act of misfeasance or malfeasance related to his or her service. Shortly after being appointed, the guardian must file an inventory of the ward’s income and assets with the Surrogate’s office. The guardian is required by statute to file a guardianship report annually detailing the status of the ward’s condition, health, income and assets.
What if the ward regains capacity in the future? The Court may, on summary action filed by the ward or guardian, determine the ward has returned to full or partial capacity, and restore to him his civil liberties and property if the Court is satisfied with the evidence that the person has recovered sound reason and is fit to govern himself and manage his affairs.
Our attorneys prepare clients from the outset for the possibility that the guardianship action could be contested by the AIP, his or her attorney or any other interested party. For example, it may be difficult to determine where the AIP fits along the spectrum of cognitive and mental capacity or there could be a dispute over whether the proposed guardian is in fact a suitable choice. These proceedings tend to amplify family tensions and bring to light sensitive family issues and emotional conflicts. In some cases, the Court may suggest, or the parties may agree, to go to mediation.
It is important to note that we are observing a legal and social trend away from full, plenary guardianships, in favor of less restrictive limited guardianship situations, where feasible, and in the best interest of the ward. When a person, by virtue of his condition, is declared incapacitated and full guardianship is granted, he is deemed unfit to govern himself and manage affairs in all realms, including residential, educational, medical, legal, vocational and financial decision making areas. Simply put, there is a complete relinquishment of autonomy. Under a limited guardianship framework, a Court may determine that the incapacitated person lacks capacity to manage some, but not all, of the tasks necessary for him or herself. The judge may limit the Order to allow the person to retain some decision-making power, such as where to live or where to work. These situations require great care and caution by the Court in establishing clear parameters within which the limited guardian can exercise authority without overstepping bounds. Courts and families must strive to strike an appropriate balance between exercising protection over the ward and respecting his or her dignity and right of self-determination. It is our experience, from sitting on both sides of the aisle, that New Jersey Courts deliberate carefully, compassionately, and in the best interest of the incapacitated individual when making such determinations.
Whether you are confronting the challenges associated with an aging loved one with diminished capacity or disabled children, you need proper advice regarding the planning options available to you and your family. Comprehensive lifetime and estate planning documents, including Power of Attorney, Advance Health-Care Directives, and Wills and Trusts can go a long way to avert a crisis and ease a families’ burden of having to make difficult decisions for someone who becomes incapacitated. However, if such documents are not operative and cannot be established due to incapacity, a guardianship action to appoint a general or limited guardian is one of the safeguard measures available to families to protect the well-being and property of an incapacitated person.