Inter-meddlers and strangers need not apply! The law holds that such parties may not institute proceedings. Instead, the court requires “standing”: a relationship based upon blood, marriage, civil union, trust or contract. It should be noted that a social service agency that is providing services to the incapacitated person may file a Guardianship action; in proceedings for a person 60 years or older, for example, the Office of the Public Guardian for Elderly Adults (OPG) may file. Standing is considered to be the best way to ensure an incapacitated person is protected from unwarranted charges.
To begin the Guardianship proceeding, the relative/petitioner files a Complaint in the county Chancery Court, Probate Part. R. 4:86-1. The Complaint must be accompanied by two affidavits of professionals. R. 4:86-2(b). The professionals must have personally examined the alleged incapacitated person, must not be related, and concur that the person is unfit and unable to govern him or herself. A third affidavit may be required with details of the alleged incapacitated person’s assets (R. 4:82-2(a)), which will in part control the amount of bond required – if at all.
An order is also required for the filing. It sets the date for the upcoming key milestone: the hearing. In order to properly set the date of the hearing, it must be scheduled at least 20 days from service of the hearing notice on the alleged incapacitated person. That brings us to another key requirement: timely notice of the hearing must be served on the alleged incapacitated person as well as others.
The Court will also appoint counsel for the alleged incapacitated person. Court-appointed counsel represents the interests of the alleged incapacitated person, and will take on such tasks as interviewing the client, petitioner, professionals, school and perhaps others. The Court may also, with or without advice of court-appointed counsel, appoint a Guardian Ad Litem (GAL). The GAL objectively seeks to identify what is in the best interests of the alleged incapacitated person. Each party is responsible for gathering, evaluating, and reporting on essential evidence.
