A Guardian of the Person or Guardian of the Estate is appointed by a Court in a situation where an individual is found to be presently “incapacitated” and unable to manage their affairs regarding financial, residential, medical, occupational and other major decisions. If the individual previously signed a durable general power of attorney or medical power of attorney, there might not be any need for a guardian to be appointed after the individual becomes incapacitated. Incapacity has to be proven by “clear and convincing evidence,” a high level of proof. After that, though, the Guardian is required to report to the Court pretty frequently — usually every year in New Jersey — and advise the Court about changes in the person’s condition and whether the Guardianship is still necessary. After all the Court was looking at the person at a certain point in time, but sometimes, the person’s cognition and overall condition dramatically improves to the point that a full guardianship is just no longer necessary.
Yes, a person who’s under guardianship in New Jersey can go back to Court. They have the burden of proof to show that they have regained capacity in all or some decision-making, That’s what’s going on in the case involving Britney Spears. She’s been under guardianship — called Conservatorship in California — for years, and has been attempting to get back to Court to present evidence to the Judge to prove that she is no longer incapacitated. From the public reports, her conservator thwarted her every attempt to hire a private lawyer who could build a case for her. And even a lawyer appointed for her wouldn’t help her build a case to prove her capacity.
The Guardian as well as the person under guardianship can petition the Court for a full or partial restoration of legal capacity and legal rights. The statute is at NJSA 3B:12-28. Cases for restoration of capacity have been brought in the NJ courts since as early as 1843. The process requires filing a Verified Complaint supported by current evidence and physicians’ evaluations which provide detail about the person’s capabilities. If the petition is filed by the Guardian, the Court will generally appoint a lawyer to represent the person under guardianship, and if it’s filed by the person under guardianship, the Court will appoint a guardian ad litem to report to the Court on whether restoration of capacity would be in the person’s best interests. Notice must be given to the next of kin.
Guardianship doesn’t have to be forever. Call us for advice about initiating and modifying guardianships ……. 732-382-6070