Guardianship disputes: contesting, defending, and removing a guardian.

What guardianship is

Guardianship is a legal proceeding in which a Superior Court judge appoints a person or institution to make decisions on behalf of an individual who cannot make those decisions themselves. New Jersey guardianship proceedings are governed byN.J.S.A. 3B:12-24.11and the procedural framework ofR. 4:862, heard in the Superior Court, Chancery Division, Probate Part. The proceedings most often involve incapacitated adults, including young adults turning eighteen and older adults whose medical or cognitive condition has changed.

At Simon Law Group, we represent petitioners seeking guardianship, individuals and families defending against guardianship petitions, and guardians who have been appointed and now face ongoing court obligations. Every case starts with the same question: what is the least restrictive arrangement that actually protects the person at issue?

The clear and convincing evidence standard

Incapacity must be proved by clear and convincing evidence -- a heightened standard, more demanding than the preponderance standard used in most civil cases. The petitioner must demonstrate, through physician certifications and other admissible evidence, that the alleged incapacitated person:

• Is unable to manage their own affairs due to a mental or physical condition
• Lacks the capacity to make decisions regarding personal health, safety, or financial management
• Cannot be adequately protected through less-restrictive alternatives -- durable power of attorney, healthcare proxy, Social Security representative payee, supported decision-making, or special needs trust

The petition must be supported by two physician (or in some circumstances physician-and-psychologist) certifications under R. 4:86-21 documenting the diagnosis, the cognitive and functional findings, the prognosis, and which specific decision-making capacities are impaired. Vague certifications get challenged. Specific ones support the petition.

The forms of guardianship NJ recognizes

• Plenary (general) guardianship. Broad authority over both the person and the estate. Potentially appropriate when the evidence shows the person cannot make decisions in broad domains, such as advanced dementia, severe cognitive impairment, or persistent severe mental illness with no meaningful decisional capacity in the areas at issue.
• Limited guardianship. Authority only over specific decision areas where capacity is impaired; the ward retains autonomy in all other areas. NJ courts generally prefer this whenever the evidence supports it.
• Guardianship of the person. Decisions about residence, medical treatment, daily care.
• Guardianship of the estate. Decisions about finances -- bank accounts, investments, real estate, bill payment, contracts.
• Temporary guardianship. Emergency appointment underR. 4:86-81when there is immediate risk of harm. Limited in duration and followed by a return hearing.
• Guardian ad litem. Court-appointed representative for the alleged incapacitated person during the proceeding, separate from the guardian who may later be appointed.

The process step by step

• Verified complaint and physician certifications. The petitioner files the complaint in Superior Court, Chancery Division, Probate Part, in the county where the alleged incapacitated person resides. The complaint must be supported by two physician (or physician-and-psychologist) certifications under R. 4:86-21.
• Order to show cause and appointment of counsel. The court enters an order to show cause and appoints independent counsel under R. 4:86-42 to represent the alleged incapacitated person. That attorney is not the petitioner's lawyer -- their duty runs to the person whose rights are at stake.
• Investigation and report. Court-appointed counsel investigates, meets with the alleged incapacitated person, reviews medical and financial records, and files a report and recommendation.
• Hearing. A Probate Part judge conducts the hearing. The petitioner presents evidence of incapacity; the alleged incapacitated person has the right to attend, testify, present their own evidence, and challenge the petition. Independent medical evaluation can be ordered.
• Judgment. If the court finds incapacity by clear and convincing evidence, it enters a Judgment of Guardianship specifying the guardian's powers and obligations. NJ practice strongly favors limited guardianship where the evidence supports preserving autonomy.
• Ongoing oversight. The guardian must file annual personal-care plans (guardianship of the person) and annual accountings (guardianship of the estate), subject to audit by the Surrogate and the Office of the Public Guardian.

Defending against guardianship petitions

Not every guardianship petition is well-founded. Adult children sometimes file in the middle of a family-finance dispute over an aging parent's estate. A spouse or estranged sibling may file while property control is also in dispute. A person who is merely eccentric, stubborn, or unconventional is not legally incapacitated. Potential defenses include:

• Independent medical evaluation that contradicts the petitioner's certifications
• Demonstration that less-restrictive alternatives (durable power of attorney, healthcare proxy, supported decision-making) already protect the individual or could be put in place
• Evidence that the alleged incapacitated person retains decision-making capacity in the specific areas at issue
• Challenges to the petitioner's motives -- financial conflict, sibling dispute, contested estate
• Advocacy for limited rather than plenary guardianship if any is to be entered
• Identification of an appropriate alternative guardian where the petitioner is not the right person to serve

Guardianship for young adults with developmental disabilities

When a child with intellectual or developmental disabilities turns eighteen, parents generally lose automatic legal authority regardless of the young adult's functional capacity. Planning before the eighteenth birthday can reduce the gap between need and authority, but families can still seek help after the birthday when the need becomes clear. The review coordinates several moving pieces:

• Functional capacity evaluation -- what decisions can the young adult actually make? Where is support needed?
• Consideration of less-restrictive alternatives -- supported decision-making agreement, healthcare proxy, durable power of attorney where capacity to execute exists
• Coordination with the NJ Division of Developmental Disabilities (DDD) for ongoing services and supports
• Special needs trust drafting to preserve SSI and Medicaid eligibility while supplementing those benefits
• Guardianship petition timed to the birthday -- typically limited guardianship preserving as much autonomy as the medical evidence supports

Ongoing duties of a guardian

Appointment is the beginning, not the end. A guardian holds a fiduciary duty to the ward and is subject to continuing oversight. The exact filings depend on the judgment and whether the guardian controls the person, the estate, or both:

• Person-related reporting. Reports addressing residence, medical care, daily life, and well-being where required by the judgment or court practice.
• Estate reporting. Inventory and accounting obligations for income, expenses, investments, and distributions where the guardian controls property.
• Court approval. Major transactions (sale of real estate, large gifts, settlement of claims) require court approval.
• Fiduciary duty. No self-dealing, no commingling, no transactions in the guardian's own interest. Breach exposes the guardian personally to surcharge and removal.
• Office of the Public Guardian audit. Annual accountings are subject to audit. The OPG can initiate enforcement proceedings for noncompliance.

Related practice areas

• Estate Planning -- durable power of attorney, healthcare proxy, special needs planning
• Alzheimer's & Dementia Care Planning
• Wills & Testaments -- naming guardians for minor children
• Probate -- when a guardianship case concludes upon death