A father has spent thousands of dollars buying every product that a phone salesman offers. A mother has three times fallen for the “send money to Nigeria” e-mail fraud. A sister has written a check to a distant relative for half of her life’s savings and can’t remember why.
What can a family member or friend do to protect people they think are incompetent? Absolutely nothing unless there is a legal document or order giving 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, for the person’s estate or for both the person and the person’s 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 person allegedly incapacitated person does 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 specified people. These affidavits have to include:
- A physical description of the persons claimed to be incapacitated
- The diagnosis and prognosis for the persons claimed to be incapacitated, as well as the factual basis for those opinions
- The extent to which the affiant finds the persons to be unable to manage themselves or their affairs
- The extent, if any, to which the persons claimed to be incapacitated remain able to manage specific areas of their affairs (vocational, financial, medical, etc.)
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 persons can arrange for their own supervision by a third party.
One is a durable power of attorney, granted to a specific person to control your affairs. The document is drawn up voluntarily and, when it complies with the state’s legal requirements, is a valid grant of authority to make specified decisions on behalf of the person. However, power of attorney needs to be completed before there is any question as to the person’s competence, and problems may still arise if the people who granted power of attorney decline to abide by it after they become incompetent.
Another alternative is a conservatorship proceeding. This is essentially a voluntary action for a guardian (but 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.
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. And things get still more complex if the allegedly incapacitated person is receiving federal benefits or services as a developmentally disabled person.
At Barnes Law Group, LLC, we understand that many guardianship actions are emotionally taxing, as one family member is frequently claiming that another is incapable of self-care. If another member of the family disagrees—especially the allegedly incapacitated person—family relationships can be permanently damaged. The last thing you need is a drawn out process where everything goes wrong. If you think a friend or relative needs a guardian, or if you are thinking that you might need a conservator, give is a call to arrange to discuss the matter with an experienced New Jersey guardianship attorney. Or if you want to ensure now, while you are in good health, that you are the one to determine who will handle your affairs if you can’t, talk to us about an advance directive appointing the person you want to have making decisions on your behalf, should the need arise at some future time.
We have two offices serving Atlantic and Cape May Counties, in North Wildwood and Egg Harbor Township.