To Be Appointed Guardian You Must Be Related by Blood or Marriage or Be the Power of Attorney Before Incapacity Strikes

HNWGuardianship Law

  • Absent proof of parentage by blood or adoption, NJ law does not permit a party to become the legal guardian of another.
  • In a recent case in our office, our client applied to have her father declared incapacitated and herself appointed as guardian of his person and property.
  • The problem was, she could not prove she was the biological or adopted daughter of the alleged incapacitated “father”.

guardianshipThe Facts of the Case

Petitioner, age 53, is the daughter of the incapacitated parent.  She only learned that he was her biological father “when the results of a DNA test came back and her biological mother admitted he was her biological father”.  The father confirmed this by doing his own DNA test.

Through counsel, the daughter was asked to provide proof of the alleged familial relationship.  Her response included “screenshots” from an internet website (23andMe).

In opposition to the daughter’s appointment, was a person appointed as Power of Attorney (POA) by the father several years earlier?  He petitioned the court to dismiss the complaint due to the daughter’s lack of standing to bring a guardianship action.

The POA argued that the “23 and Me” DNA results relied upon by the daughter were insufficient to create a presumption of paternity.  Only a genetic test result indicating a 95% or greater probability that the alleged father is the father of the child creates a presumption of paternity, and that presumption may be rebutted by clear and convincing evidence that the results of the test are not reliable.  See N.J.S.A. 9:17-48i.

Legal Outcome of the Case

So, what is the law and what was the outcome?  There is a long line of cases in incompetency proceedings which have deemed the petitioner to be a “mere stranger”, i.e., one who is not a relative, and does not have a legal or equitable interest in the subject of the action.

In a ruling years earlier, a NJ court was called upon to consider the issue of standing.  In that case, a woman, age 55, had been seriously injured in an automobile accident and was hospitalized for many months, eventually residing in a convalescent home.  The plaintiff who sought guardianship had been a childhood friend of hers but had no other relationship with her.  Her friend was not “in any financial or legal manner obligated to plaintiff.”  The incapacitated person having earlier executed a Power of Attorney to plaintiff, revoked the Power of Attorney approximately two years later, and made a new Power of Attorney in favor of her attorney.  But the friend filed the action to declare her friend incapacitated.

The result in the case was that plaintiff was not a proper party to bring a determination of competency of her friend and the complaint was dismissed.

One reason for dismissal was public policy.

“The public policy which gave birth to the standing requirements as to incompetency actions is clearly to protect individuals from unwanted interference in their affairs; to shield an individual from the necessity of defending himself or herself from frivolous or insidious incompetency charges.”

In our case, the Petitioner did not establish paternity.  The court dismissed the daughter’s case without prejudice to refile in her proof’s establishing paternity.  It is likely she would have been granted guardianship.

To discuss your NJ guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Guardianship Attorney

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