Petitions for Guardianship can still be Filed despite current difficulties

Advance planning with powers of attorney and health care powers of attorney is a good way to ensure that there is an authorized person to handle things and make decisions should a person become incapacitated due to stroke, accident or dementia. Of course there are plenty of situations in which no such documents were ever signed. When a person without such planning documents becomes incapacitated and cannot function, the remedy might be to file a petition for Guardianship. 

The NJ Supreme Court has just issued an order to relax some of the requirements of the guardianship court rules, to facilitate the mental capacity evaluations and enable the whole process to proceed despite there being no in-person hearings. You can read the Order here.Notice and Order – Relaxation of Rule 4-86 re Guardianship of Incapacitated Adults During COVID-19 – As Signed – 04-08-20

An action for Guardianship is a court petition that is filed in the Chancery Division of State Court through the County Surrogate. Two physicians or a physician and a psychiatrist must certify in writing that the individual lacks capacity to govern himself and manage his affairs. Once the action is filed, it normally takes about 2 months before the actual court hearing when a decision will be made by the Judge on whether or not to appoint a Guardian. In the meantime, sometimes there are emergency tasks that need to be taken care of while the case is pending. The Court Order I mentioned above addresses this. Perhaps we need an immediate decision-maker to give consent to major surgery or to discharge a patient to a nursing home. Perhaps a house is under contract for sale, the sale date is scheduled and ready to go, and the seller has had a stroke and cannot participate in his sale. Perhaps the spouse has no access to funds because all the assets are in the name of her husband who is in a coma. Under certain limited circumstances, a court might appoint a Temporary Guardian of the Person or a Temporary Guardian of the Property (Estate) to grant some limited authority to deal with an emergency situation that is going on while the case is pending. Each case is unique of course and these are just examples of situations that might come up.

The Courts are presently operating in more limited ways than usual, but emergencies can still be addressed. Coordinating a guardianship action takes more time than it did before the current crisis, but the process is still important if there is an incapacitated family member and things cannot be handled due to lack of authority.

Call us for representation on guardianship and emergency protective arrangements …. 732-382-6070