You or a loved one don’t have to just “give in” if someone files for guardianship especially if a guardianship isn’t needed. As a family member, spouse, adult child, or someone who is accused of being incompetent, you have rights. You can fight to stop the guardianship. You may be asking, ‘how do you stop the person who has filed for guardianship’? I’m about to tell you so read on and watch my video on this page. It will help you better understand.
There are three defenses to stopping a guardianship in New Jersey.
First, you can object to standing. Standing is a legal term that means the person who is filing the guardianship application has no right to come into court. Standing requires there to be some legal connection between the person filing for guardianship and the alleged incapacitated person. Someone cannot just come into court and claim that someone else needs a guardian. There has to be some connection, or nexus. The person who files has to be “interested” in you and your welfare and safety. If they don’t have that connection to you, you can ask that the petition for guardianship be dismissed for lack of standing. Who has standing to file for guardianship in New Jersey? Our appellate court has looked at standing in the guardianship setting and requires that it be a close family member by blood relation, a legal representative like a power of attorney, or a person related by marriage, including step family members.
Second, a guardianship can be stopped if you are competent to make your own decisions. Competency in its simplest definition means the ability to care for one’s self, to think through life’s daily decisions, and to analyze and logically reason on your own. Do you or your loved one understand what he/she is doing, and the consequences of your decisions?
When a guardianship petition is filed, you typically have two issues presented to a judge: a petition to declare a finding of incapacity, where the court is asked to make a finding that you are (totally) incompetent (partially) incompetent, or not incompetent at all (a finding that you are, indeed, competent). That is the “mental health” test of the guardianship proceeding. The law requires there to be an examination of the “alleged incapacitate person” by at least two (2) licensed physicians or one (1) physician and a licensed psychologist who file(s) a competency report with the court. The law mandates that no case can be filed for guardianship without these physician reports and without an initial medical opinion of incapacity unless the alleged incapacitated person or his/her custodians refuse to allow the physician in to conduct the examination. The other issue is the petition for appointment of guardian. If you are competent, you don’t need a guardian. You may need some assistance, or perhaps you may need a guardian for just some activities of daily living, (which means that a court can order some, but not all, assistance for you by way of a limited guardianship). These rights may include the right to handle your finances, to marry, to choose where you live and who you socialize with. You may or may not need a guardian of you as a person, someone who will make all of your daily personal decisions for you, like your health care choices, your medications, etc. In such a case you may still retain control over your finances and your property.
So, the issues to be addressed will be who will manage your money, pay your bills, ensure that you’re cared for and be kept safe. This will become the court’s focus. Your goal is to keep those decisions with you or someone other than the proposed guardian.
The third way to stop a guardianship is advocating for a “lesser restrictive alternative” to a guardianship that adequately addresses your needs. What does THAT mean? I’ll tell you by use of an example(s). If you are incompetent, you need someone to look out for you, to protect you and safeguard your property and money, right? Who will that be? Well, you may have already addressed the possibility of your incapacity years earlier with your estate plan and made those choices! If you created a trust your successor trustee can safeguard your money and property. Did you sign a power of attorney? Then your POA can transfer property to your trustee, who will account for it and distribute money for your benefit and handle your day to day activities. Did you sign health care documents like a living will or health care proxy, or a medical power of attorney? If you did those documents, when signed while you were competent, addressed your current situation and therefore you may not need a guardian after all. Why, because you already appointed your representative.
An involuntary guardianship is a serious matter. No one wants to give up their rights and civil liberties. Does the fact that someone is going into court alleging you are not competent and requesting a judge to put someone else in charge of your life offend you? If it does (and it happens every day) you can fight back. When families fight, that’s called a guardianship fight.
No matter what anyone tells you, the most important thing to a judge in a Guardianship proceeding is the health, safety, welfare of the person who is alleged to be incapacitated.
Some Guardianships are brought by individuals with bad motives. For example a guardianship case is filed as a way to prevent a person from changing their Last Will or Trust or creating a new estate plan that adversely (or may adversely) affect the plaintiff(s). This is why it is important to defend a Guardianship proceeding if you suspect the “real” motive of the person filing the application is not for the best interest of the person. The goal in a guardianship contest is to dismiss the Guardianship. If however, a person needs some limited assistance, then the goal is to limit the court’s control and supervision over the person by persuading the judge to appoint a limited guardian for those acknowledged needs of the person and not declaring the person to be completely incapacitated.
An interested party to a guardianship case can insist upon a “custom-made” judgement that realistically addresses the needs of the declining person while allowing the alleged incapacitated continued freedom over his/her life. For example, if someone is able to balance their checkbook but is unable to go shopping or to the bathroom by themselves and/or cook their own meals, a limited Guardian or conservator can be appointed to look after only those needs.
In a Guardianship, a representative of the court called a guardian ad-litem will be appointed by the judge to investigate the extent of the alleged incapacitated person’s mental and physical capacity. They will make a home visit(s) and interview the person for a sense of their mental health and living environment. The guardian ad-litem will also interview relatives, caretakers, healthcare professionals and anyone else involved in the person’s life. This person will try to get a picture of the person’s assets, assess his/her ability to manage their finances, and make sure that the person is not being taken advantage of. This is where your advocacy and that of experienced legal counsel can become very important to a successful outcome. It is at this state of the guardianship proceeding that advocacy through a vigorous challenge to the motives of the petitioner can be confronted head on. It’s powerful when you can persuade the court appointed guardian ad litem to endorse your opposition to guardianship, and persuade him or her to advocate for some alternative relief short of full guardianship.
Although some people need Guardianships, many do not and should strenuously oppose them. If you or a loved one is facing an involuntary proceeding brought against them, call me.
Learn How to Fight and Win a Wrongful Guardianship
New Jersey Adult Guardianship and Protective Proceedings Jurisdiction Act (NJS 3B:12B-1)
As discussed elsewhere on this site, a protective arrangement can be requested from the court so that the needs of an incapacitated or impaired person can be addressed without the appointment of a fulltime guardian. A protective arrangement can be requested when a person is at risk of wasting, losing or being financially exploited by others and/or when funds are needed for his/her support and care. In such a case the court can and will authorize a protective arrangement to meet the foreseeable needs of the person without appointing a full guardianship over the person’s life and estate. A protective arrangement can be requested for the sale, transfer, and protection of personal property and real estate. It can be used to address creditor claims and threats of financial exploitation by predators including manipulative children, second and later spouses, new “friends”, etc. This type of advocacy is a powerful alternative to the intrusive powers of an all-inclusive guardian of a person’s life and property.
Sometimes in a guardianship application the case is less about the merits of the person’s mental and/or physical health but the motives of the person applying for guardianship. He or she is claiming an interest in the aging and or incapacitated person’s health, safety and welfare, but the real motives are under handed and conniving. The law clearly provides for a hierarchy of potential guardians and among this hierarchy comes a critical evaluation of their suitability to serve. It is so very important that objection be filed as early as possible with the court so that a thorough “vetting” of the potential guardian can be fully evaluated.
It is at this stage an objector can obtain full discovery of the alleged incapacitated person’s finances, income, savings, estate planning, etc., so that strict oversight and protective measures can be imposed including bonding requirements.
Let Fredrick P. Niemann, Esq. and his team represent you and stop an unnecessary guardianship. Call toll free (855) 376-5291 or email him at firstname.lastname@example.org. He welcomes your call and you’ll find him very easy to talk to.
I was lucky enough to have Mr. Niemann handle my affairs. He was so professional and compassionate during a very difficult time for me. My total experience was great!
—Arti Sinha, Marlboro, NJ
It was a real pleasure working with this firm. I had a lot of questions resulting in quite a few phone calls and Mr. Niemann and his staff were very responsive and never once made me feel uncomfortable and always took the time to clarify or explain anything I didn’t understand. I would highly recommend this firm and will definitely return when the time comes that I need services again.
—Colleen Moore, Tinton Falls, NJ
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, A New Jersey Guardianship Attorney
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