When a guardianship petition is filed (N.J.Rules 4:86), seeking to have the court declare a person to be incapacitated and to appoint a Guardian to make the decisions on their behalf, there are a variety of parties who may be involved in the case. The Petitioner is the person who files the action — sometimes called the plaintiff. They are typically represented by an attorney. The Alleged Incapacitated Person (AIP), of course, is the person who is alleged to be in need of a Guardian. The Court must appoint an attorney for them, though on occasion they hire their own attorney instead (particularly in contested cases where they had an ongoing attorney-client relationship with counsel). The next of kin would be “interested parties,” and they may or may not choose to respond to the allegations and take a position about the case. If they want to enter the case, they would need to hire their own attorney(s).
Sometimes the petition is filed by a family member; other times it may be filed by the NJ Adult Protective Services agency or other interested party. If the case is contested, the issues in dispute are typically (1) whether the person requires a guardian (if there’s no power of attorney), (2) whether the person is incapacitated and (3) who is a fit and suitable guardian. The next of kin have interests that might be adverse to the interests of the alleged incapacitated person, which is why they all need their own attorneys. Sometimes the Petition was filed because of allegations of wrongdoing made against the family members who have been most involved with the alleged incapacitated person.
To assert a claim in a legal proceeding, a party has to have what’s called “standing.” This means they have some interest which is injured or affected by what is at stake. For example, the alleged incapacitated person has a right to appear at the trial unless their own attorney has waived that right on their behalf. However, another family member who is opposing the guardianship may not have “standing” to object if the person isn’t present at trial because it isn’t the family member’s rights at issue, it’s the alleged incapacitated person’s right. Similarly, the next of kin might not have “standing” to object to a court order for production of the alleged incapacitated person’s financial records, or freezing of the AIP’s accounts, or production of their medical records.
The recent nonprecedential (“unpublished) decision by the Appellate Division in In the Matter of Hugo, App. Div. (per curiam) (15 pp.) (20-2-6563) explores many of these issues in a case in which certain family members claimed that Ms. Hugo wasn’t incapacitated. The Public Guardian for Elderly Adults of New Jersey was appointed as general guardian over her person and property in that case.
For advice and representation in guardianship cases, call us at 732-382-6070