Welcome to Your Guardianship Journey: Navigating the Legal Landscape with Confidence
Embarking on a guardianship can feel daunting, but understanding the journey ahead can provide clarity and confidence. At our firm, we break down the process into clear, manageable stages, ensuring you are well-informed and prepared every step of the way. Here's a roadmap of what to expect:
Stage 01: Doctor Visits and Certifications, Training Materials
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Some terms you will see moving forward:
AIP: This stands for "Alleged Incapacitated Person." The person for whom you are applying for guardianship is the AIP. Please note that they are ALLEGED to be incapacitated. Until such time as the court orders that the person be deemed incapacitated, they are presumed competent and retain all of their rights.
Incapacitated: Refers to a person who is deemed unfit and unable to manage his/her affairs.
Competent: Generally, any adult who has not been deemed incapacitated is presumed to be "competent," that is, able to manage their own affairs.
Capacity Evaluation: When a doctor evaluates an AIP to determine whether they are able to manage their affairs. Doctors look for whether the person is oriented as to person, place, and time, they test their recall ability (their short/longterm memory), their attention/concentration (such as by counting backwards from 100 or counting change, drawing the face of a clock, or following a three-step command), and their overall coherence in a conversation. While technically any doctor (including medical doctors, psychiatrists, and even dentists) can fill out a certification stating that a person is incapacitated, there are also doctors who specialize in these capacity evaluations. For example, for an elderly person, there are geriatric care providers who specialize in issues related to dementia.
Doctor Certifications: We will draw up a certification using language specified by court guidelines, which the doctors need to fill out at the capacity evaluations. The certifications state the basic information about the appearance of the AIP (so the court knows the doctors evaluated the right person!), the doctor's qualifications, how the AIP presented in terms of symptoms and behavior, the doctor's diagnosis, and the doctor's opinion as to the AIP's fitness to make decisions and handle their own affairs. Two doctors need to certify that the AIP is unable to handle their own affairs in order to qualify for a guardianship.
Guardianship of the Estate - If you are guardian of the estate, it means you will be responsible for managing the AIP's financial affairs.
Guardianship of the Person - If you are guardian of the person, it means you will be responsible for managing the AIP's personal affairs, such as living arrangements and medical care.
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At this stage in the process, we will draw up the two doctor certifications for the capacity evaluations you need to set up. You will need to set up evaluations with two doctors to examine the AIP and opine as to whether the AIP has capacity or not. Please check with your doctors first to make sure they are willing to sign this document before setting up the appointment.
We will provide these documents to you to bring to the doctors when you have the capacity evaluations. If you have already had the evaluations, then we will send the certifications to the doctors; however, it is preferable if you bring them in person.
Once we have both signed certifications, assuming that BOTH indicate that the AIP is in need of a guardian, we can proceed to the next step.
During this stage, you should also review the training materials provided by the court. In Stage 3 (Drafting Pleadings), one of the documents you will sign is an acknowledgment that you reviewed these materials. These materials are provided by the court and are required.
They are linked below:
- Tutorial on Court Appointed Guardianship
- Guardianship of the Estate Brochure
- Guardianship of the Person Brochure
Stage 02: Drafting Pleadings
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Some terms you will see moving forward:
Pleadings/Filing Pleadings: We are putting together an application to the court to show that the AIP is in need of a guardian. “Pleadings” refers to the documents contained in that application, including a Verified Complaint (the document needed to start any litigation/lawsuit), a Certification of Assets, the two Doctor Certifications, a proposed Order Fixing Hearing Date, a proposed form of Final Judgment, and many others. We “file” the pleadings with the Surrogate's court by mailing/delivering the documents to their office for them to input into their system.
Litigation: This is a general term to describe the process of taking legal action. Any time a Complaint is filed with the court, litigation is started. It may not seem like you are suing anyone in an application for guardianship, but it is still considered a court action.
Surrogate: The Surrogate Court is a court that handles limited matters such as Estates, trusts, and guardianships. The position of Surrogate also refers to a person, Deputy Clerk of the Superior Court Chancery Division Probate Part and can sometimes act as a judge.
Superior Court Chancery Division Probate Part: The courts in NJ start at the level of Superior Court, then the Appellate Part, then finally the Supreme Court. Lawsuits start in the Superior Court. The Chancery Division is once branch of the Superior Court that deals with certain matters - ones that cannot be resolved by ordering one person to pay another. Probate Part refers to the part that handles estates and guardianships.
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At this step in the process, we will finish drafting the pleadings, including those listed in the definition below as well as several others. You will need to sign many of these documents, so it is important that you read them over to make sure all the information is correct and in line with the facts you know and believe about the situation.
In order to file our application we need:
- The two doctor certifications from the previous step
- To complete the pleadings
- For you to review, approve, and sign the pleadings
- Any supporting documents that will be attached to the pleadings, such as the AIP's Power of Attorney and/or Living Will
- Once we have all of the above, we can move on to the next step, filing the pleadings.
This link will bring you to a page with a graph of the courts, for a better visualization and more information.
Below you can find a chart of the court system in case you have trouble loading the page:
Stage 03: File Complaint and Await Notice of Hearing Date
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Some terms you will need moving forward:
Docket Number: Your case will be assigned a number by the court, which will appear in the caption near the top of every subsequent document filed.
Order Fixing Hearing Date (“OFHD”): The court will fill out this order, which we provide in blank form customized to your case information, with a date for a final hearing. Assuming that no answer/objection is filed to the application, on the date of the hearing, the guardianship will be finalized. Also in this order, the court appoints an attorney to represent the AIP.
To Enter an Order of Judgment/Conformed Order or Judgment: We submit proposed forms of Orders and Judgments which state what we want to have happen as a result of our application. This is called “relief.” These documents have blank spaces for the court to fill in things like hearing dates, who will be the CAA, how long parties have to answer, etc. When a judge fills out the order granting the relief requested, that action is called “entering” the order. The order that has been filled out is referred to as having been “conformed.”
Court Appointed Counsel/Attorney (“CAA”): Remember when we previously defined “competent” we noted that all adults are presumed to be competent until the court orders otherwise, and they retain all their rights until that time. That includes the right to have an attorney defend them. To that end, the court appoints an attorney to represent the AIP at this time.
Hearing: A hearing is when the parties gather at the courthouse for the judge to review the application and take testimony (if applicable). The result of the hearing is that the judge determines whether the person should be deemed incapacitated or not. For applications that are unopposed, the judges may not require a hearing but will simply make a decision based on the pleadings filed. Hearings often held telephonically or via Zoom, especially since the start of the Covid-19 Pandemic. At this step, the court will enter a hearing date into the order we submitted, which will usually be about 6-8 weeks after the time the order was entered.
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We will send in our guardianship application for filing with the court. The court will process the application and then return it to us with a docket number, information on the hearing date, and what attorney will be appointed to represent the AIP. This can take a couple weeks depending on the court. Higher volume courts like Essex will obviously take longer than less densely-populated areas like Hunterdon. Generally speaking, there is nothing for you or us to do in the interim except wait and continue to take care of your loved one as you always have.
Stage 04: Serve Interested Parties
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Some terms you will need moving forward:
Interested parties: Any party who has legal standing to object to your application.
Standing: The legal right to initiate a lawsuit.
Serve: To deliver conclusively a legal document.
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There are certain people who need to be notified of the guardianship application. Those parties are referred to as “Interested” parties – regardless of any actual interest they have displayed in the case.
Essentially, anyone who has standing to file this application (if you had not done so) or oppose your application needs to be notified.
For example, if you are a child of the AIP, and you have three siblings, all three of those siblings need to be officially notified by us and receive a copy of all of the filed pleadings in the application. Why? Because any one of them also had a right to file the application. Therefore, they have a right to object to yours. This process needs to be done even if you have discussed the matter with your siblings and they are ok with the application and you becoming guardian.
It could happen for one reason or another that your siblings oppose the application. Either they want to be guardian, or they think that your parent does not need a guardian. Since they are on equal footing with you in terms of legal rights (being also children of the AIP), they can object to your application.
The interested parties as well as the CAA need to be served with the pleadings via regular and certified mail. Certified mail is the method used in most cases to serve another party because it can be tracked and we receive a card signed by the person we served as a result, as proof that this person received the package.
The AIP will need to be personally served with a process server or other adult. That is, the process server will go to the residence of the AIP and hand deliver the pleadings to him/her.
After everyone has been served, we will file a pleading called a “Proof of Service” with the court. If we cannot prove that everyone was served correctly, then the matter cannot move forward.
Stage 05: CAA Interviews AIP, Background Check
In the Order Fixing Hearing Date, an attorney will be appointed by the court to represent the AIP. As a refresher, we refer to this attorney as the “CAA.”
Elder abuse is rampant in the world, and sometimes children will apply for guardianship of their parents in order to control them. Abuse of the system can also occur with young disabled individuals who may not need a full guardianship but rather a Power of Attorney along with more social supports. For this reason, special care has to be given to make sure the AIP's voice is properly heard. That is why an attorney is appointed. If the AIP wishes to hire a different attorney, that is also possible.
The job of the CAA is to represent the AIP. Remember that all adults are presumed to be competent until proven otherwise, so the CAA is supposed to represent the AIP as she would any other client. That is, her job is to advocate for the AIP's wishes to the best she can ascertain them. The CAA's job is NOT to make decisions regarding what she thinks is in the AIP's best interests. If the AIP objects to the guardianship, the CAA must object to the guardianship even if to an outsider the objection seems unreasonable.
The CAA will also want to interview the proposed guardians to make sure they understand what being a guardian means, that they have the AIP's best interests at heart, that they have a plan for how they are going to take care of the AIP, etc. She may also want to interview other family members, as well as the two certifying doctors.
In the event the AIP objects to the guardianship, many more steps need to be taken, which will be outlined in the next stage. If the AIP does not object to the guardianship, then the CAA will write up a report stating that she has no legal basis to object and also giving an opinion as to the fitness of the proposed guardians as well as any limitations that should be placed on the guardianship. For example, maybe the AIP needs help managing finances but is capable of making medical decisions. Starting in 2021 there is a model form that CAAs are required to follow to make sure that all reports are uniform and thorough and that they have covered all the topics the court thinks are necessary.
During this stage, the prospective guardian may also be contacted by the court to do a background check. The proposed guardian should cooperate with all of the requests of the court at this time.
Stage 06: If Contested - Interim Steps
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Some terms you will need moving forward:
Contested: A matter becomes contested when someone files an objection.
Guardian ad litem ("GAL"): This term means a guardian appointed to represent the AIP during the course of the litigation. This is an attorney whose job is to determine and advocate for what is in the AIP's best interest.
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Things can get complex if the AIP objects to the guardianship. Some of the main things that should occur in this instance are as follows:
- The CAA might request the appointment of a guardian ad litem ("GAL"). This is another attorney who steps in to represent the AIP's best interests. The CAA is supposed to request the appointment of a GAL if the CAA has difficulty representing the client as she would a competent client.
For example, if the AIP has a condition like advanced dementia and really needs to be in a nursing home because she has not paid her bills, does not bathe, cannot drive, needs help getting dressed, etc., the CAA can see that, in reality, objecting to the guardianship is not a good idea. But the CAA still has to follow the directives of her client to object. In this case, she can request a GAL, who is authorized to look at the situation objectively and give an opinion as to what is in the AIP's best interest.
As the petitioner, we want to get the GAL on our side and show them that the AIP really does need a guardian as we are proposing.
What I have outlined above is the proper procedure, though unfortunately it does not always work out that way, and the CAA might end up making judgment calls as to what is in the AIP's best interests. While it is not proper, it is also very difficult to prevent. - The CAA or GAL might order another medical examination. One of the best ways the CAA or GAL can prove their point about the AIP's capacity is by having another doctor evaluate the person. At this stage, they may look for a specialist in the field to do a thorough examination of the person to either negate or reinforce the two doctor certifications previously filed.
- The CAA and I may meet to discuss whether any less-restrictive options are available that will meet the care needs of the AIP. Sometimes the AIP is willing to admit that they need help managing their affairs, but the very act of admitting they need help might negate the need for a guardian. In that case we may be able to work out a more limited arrangement where a surrogate decision maker and social supports are put in place without a full guardianship. This can look like having the AIP sign a Power of Attorney and Living Will and agreeing to allow a visiting nurse and/or social worker to come into the home to assist with their daily activities.
Generally, at this stage, we try to maintain the “status quo” unless we can conclusively prove that the status quo is dangerous. That is, if the AIP is in a nursing home, they will typically stay there. If they are at home, they will typically stay there. If a sibling kidnapped the AIP and the AIP is currently at the sibling's house, the AIP may stay there.
Stage 07: Attend Hearing
If your matter is uncontested, there will be one final hearing to determine whether the AIP should be deemed incapacitated. If this is the case, you likely will not have to appear in person. Many hearings, especially after changes made due to the Covid-19 pandemic, are heard either telephonically or via zoom. Sometimes your matter may be heard “on the papers,” which means that the judge will make a decision based on the pleadings filed.
We do not know until a day or two ahead of time how the hearing will be held, so we recommend you block off time that day as if you anticipated going to the courthouse.
As a result of this hearing, assuming the matter was uncontested, all parties were properly served, and the doctor certifications are convincing enough, the judge will ender a Judgment of Incapacity naming the guardian(s) and outlining the guardian's responsibilities.
My office will serve the Judgment on the interested parties, as we did previously with the initial pleadings that we filed.
If your matter was contested, it is likely that this hearing will not be held or it will be held as a “Case Management Conference” (“CMC”) instead. A CMC is a meeting between the attorneys and the judge to see where things stand and what is the action plan for how the matter should proceed.
Stage 08: Qualify as Guardian
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Some terms you will need moving forward:
Qualify - to "Qualify" as Guardian is the legal term for completing your application to become Guardian and receiving your Letters of Guardianship.
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You (assuming you became the guardian – if not, then the guardian) will need to go to the courthouse to sign some documentation in order to “qualify” as guardian. The court should also be able to mail out the documentation needed if you are not local. You will then be provided with the certificates that you need in order to show that you are the guardian. These may be called “Letters of Guardianship,” “Guardianship Certificate,” or something similar. The official term varies by county, but they all function the same way.
Depending on your relation to the AIP, you may have also been ordered to obtain a surety bond, which is like insurance on the AIP's money, in case you try to run off with it. You will also need to apply and qualify the surety bond at this time. We will assist you with finding an insurance company and completing the application.
If you are the parent of the AIP, you likely will not need to obtain a surety bond.
Stage 09: File 90-Day Inventory
At this point our involvement in the guardianship is over, but you as the guardian have continuing responsibilities. Those are outlined in this stage and the next.
One of the pleadings we filed to initiate the guardianship application was the “Certification of Assets.” You may have had an idea about the AIP's asset before applying as guardian, but once you become the guardian you now have the authority to dig further and control those assets. At this time, you need to get more up-to date and complete information on all of the assets to give the court a complete picture of the AIP's financial status.
At the same time, you will need to open a guardianship checking account and close or retitle all assets. Our post-guardianship guide that we will provide to you at the closure of your matter will explain this process in more detail.
You can find all the information you need about reports and responsibilities on the guardianship monitoring website, accessible through this link.
Click this link for the 90-Day inventory.
This form is designed for guardians to file it on their own. We do not file it for you; rather, you should send it directly to the surrogate in the county where you qualified as guardian.
Stage 10: File Yearly Reports, Other Updates to Court
There are at least one and in most cases two reports that you need to file annually to report about the status of the Incapacitated Person (no longer an AIP because they have been adjudicated incapacitated). The first report has 3 parts.
The reports that you are required to file can be found in the Final Judgment.
All guardians are required to submit a Report of Wellbeing, which include the following.
Most guardians will also need to submit an accounting, except in cases where the Incapacitated Person has no assets or income.
- For most people, you need to file the EZ Accounting
- For Incapacitated Persons with large estates (generally over $1,000,000) the Comprehensive Accounting may be requested instead
Check the final judgment to determine which one you are required to file.
These reports are due within 2 weeks of the anniversary of you being appointed guardian on a yearly basis. We recommend starting them about a month in advance, particularly since you need to obtain a doctor report for the Report of Wellbeing.
Again, these are intended for the guardians to fill out and send to the court directly. Do not send them to my office.
There may be a filing fee for your reports. You should call your county surrogate to verify what their fee is.
Other reports:
You are also required to tell the court of any major changes in the status of the Incapacitated Person, such as if they move. You must also report to the court when the Incapacitated Person passes away.
You will need to complete a final accounting when the Incapacitated Person passes away. In some counties, you may also need to apply to be discharged as guardian. For the discharge, you may want to engage an attorney. We can assist you with that, or you are free to hire any attorney of your choosing.
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By breaking down the guardianship process into these stages, we strive to provide transparency and support, ensuring you are never in the dark about what comes next. Our goal is to navigate this journey together, with your interests at the forefront.