How Do You File for Guardianship?  A Simple Step-by-Step Explanation

HNWGuardianship Law

incapacitated personAn action for guardianship of an alleged incapacitated individual and the proceedings required for a judgment of incapacity are governed by court rules and statute adopted by the State of New Jersey.  These rules and statutes are R. 4:86-1 to 8 and N.J.S.A. 3B:12-24 to -35.

Rigorous safeguards have been established to protect a person who is the subject of a guardianship hearing because a finding of incapacity results in his/her loss of the right of self-determination and decision making.

What Constitutes Being an Incapacitated Person

An “[i]ncapacitated individual” is a person “who is impaired by reason of mental illness or intellectual disability to the extent that the individual lacks sufficient capacity to govern himself/herself and manage his/her affairs.”  N.J.S.A. 3B:1-2.

Legal action for the appointment of a guardianship must comply with Rule 4:86-2.  A guardianship complaint will include two affidavits from qualified medical professionals, stating their opinion(s) about “the extent to which the person is alleged to be unfit and unable to govern himself or herself and to manage his or her affairs,” R. 4:86-2(b)(2)(F).  These medical professionals are also required to opinion about “the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas of their life, such as . . . legal, sound, life care decisions.

“If the court is satisfied with the sufficiency of the documentation, supporting affidavits and that further proceedings” are necessary, the court will (1) set a date for a hearing; (2) give the alleged incapacitated person “at least 20 days’ notice” of the hearing, and (3) advise the person that if she opposes the action, “he/she may appear either in person or by attorney, and may demand a trial by jury.”  “[T]he trial of the issue of incapacity may be had without a jury . . . unless a trial by jury is demanded by the alleged incapacitated person or someone on his behalf.”  N.J.S.A. 3B:12-24.  “[I]f the alleged incapacitated person is not represented by legal counsel,” the court will appoint legal counsel.  The law requires it.

Unless the alleged incapacitated person requests a jury trial, the court will take “testimony in open court” and “determine the issue of incapacity.”  A finding of incapacity must be made by clear and convincing evidence.

Upon making a finding of incapacity, the court may appoint a general guardian or a limited guardian, depending on whether the individual “lacks the capacity to do some, but not all, of the tasks necessary to care for himself.”  N.J.S.A. 3B:12-24.1(a) to (b).  “A judgment of limited guardianship may specify the limitations placed upon the authority of the guardian and the areas of decision-making to be retained by the person.”  N.J.S.A. 3B:12-24.19(b).  After determining whether a general or limited guardian is appropriate, the court must then appoint an individual to serve as the guardian.

So there you have it.  While more can be written, I think I’ve highlighted the important points to consider if a guardianship filing is contemplated.

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 or telephone 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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