A guardianship of an incapacitated adult The life of a guardianship of an incapacitated adult in New Jersey, step by step: every station, its clock, and the Rule of Court behind it

The line at a glance

Every stop the paper makes, in order. Tap a stop to jump to it.

1. G1Verified complaint with two affidavitsEach affiant examined the person within the 30 days before filing; filed with the Surrogate of the county
   1. If the person is a minor, not an incapacitated adult: M1, then back at G6.
   2. M1Application to the Surrogate for letters of guardianship of a minorCounty where the minor is domiciled; recorded by the Surrogate on filing
2. G2The Surrogate reviews and docketsBefore docketing; an incomplete complaint is processed as a nonconforming paper under R. 1:5-6
3. G3Order for hearing, notice, and an attorney for the personAt least 20 days' notice of the hearing date; the order, complaint and affidavits served on the person personally
   1. If the alleged incapacitated person demands a jury: J1, then back at G5.
   2. J1Answer and jury demandNot later than ten days before the hearing, if the person or anyone noticed will appear by attorney
4. G4The appointed attorney's report; proof of serviceReport filed at least ten days before the hearing; proof of service not later than ten days before; proposed judgment with the Surrogate ten days before
5. G5Hearing and judgment of incapacityThe hearing date fixed in the order; the Surrogate delivers the file to the judge seven days before; a motion for a new trial within 30 days of the judgment
6. G6Qualification, bond, and letters of guardianshipWithin 30 days after entry of the judgment; the Surrogate notifies the court if the guardian has not qualified by then
7. G7Inventory and the annual reportsInventory within 90 days of appointment; a report of financial accounting and a report of well-being every year; the Surrogate told within 30 days of a death or major change
8. G8Return to capacityA separate summary action, at any time; one affidavit or certification of the kind that opened the case; notice to everyone the original complaint would have named

Stop by stop

1. G1 Verified complaint with two affidavits

   Clock: Each affiant examined the person within the 30 days before filing; filed with the Surrogate of the county

   Whoever seeks the guardianship, usually a spouse, child or parent, files a verified complaint naming the alleged incapacitated person, the spouse, children, parents and nearest kin, whoever has custody, and anyone already holding a power of attorney, health care directive or trust. Annexed to it: an affidavit of what the person owns and earns, the affidavits or certifications of two physicians (or one physician and a psychologist, physician assistant or advanced practice nurse) each of whom examined the person within the last 30 days, a criminal and civil judgment history for each proposed guardian, and a Case Information Statement. The action is brought under R. 4:86-1 through 4:86-8 for a general, limited or pendente lite temporary guardian.

   What the rule says 4 sources

   “Every action for the determination of incapacity of a person and for the appointment of a guardian of that person or of the person’s estate or both, other than an action with respect to a veteran under N.J.S.A. 3B:13-1 et seq., or with respect to a kinship legal guardianship under N.J.S.A. 3B:12A-1 et seq., shall be brought pursuant to R. 4:86-1 through R. 4:86-8 for appointment of a general, limited or pendente lite temporary guardian.”

   R. 4:86-1(a) · as code

   “The allegations of the complaint shall be verified as prescribed by R. 1:4-7. The complaint shall state: the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person’s spouse, if any; the plaintiff’s relationship to the alleged incapacitated person; the plaintiff’s interest in the action;”

   R. 4:86-2(a) · as code

   “Affidavits or certifications of: two physicians having qualifications set forth in N.J.S.A. 30:4-27.2t; or one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2;”

   R. 4:86-2(b) · as code

   “Each affiant shall have made a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint. The time period may be relaxed by the court on an ex parte showing of good cause.”

   R. 4:86-2(b) · as code

   Fork. If the person is a minor, not an incapacitated adult, the paper leaves the main line here for M1 and comes back at G6.

2. G2 The Surrogate reviews and dockets

   Clock: Before docketing; an incomplete complaint is processed as a nonconforming paper under R. 1:5-6

   The complaint is filed with the Surrogate, not the civil clerk. Before it is docketed the Surrogate checks that venue is right and that everything R. 4:86-2 calls for is there. If it is substantially complete and the court has jurisdiction, it is docketed; if not, the Surrogate handles it as R. 1:5-6 handles any nonconforming paper. The Surrogate keeps the guardianship file and hands the whole of it to the judge on request.

   What the rule says 2 sources

   “Prior to docketing, the Surrogate shall review the complaint to ensure that proper venue is laid and that it contains all information required by R. 4:86-2.”

   R. 4:86-3A(a) · as code

   “Upon the filing of a complaint for the determination of incapacity of a person and for the appointment of a guardian, if it appears that there is jurisdiction and that the complaint is substantially complete in all respects, the complaint shall be docketed. If, after docketing, there is a lack of jurisdiction, the court shall dismiss the complaint forthwith. If a complaint is not substantially complete in all respects, the Surrogate shall process the complaint in accordance with R. 1:5-6.”

   R. 4:86-3A(b) · as code

3. G3 Order for hearing, notice, and an attorney for the person

   Clock: At least 20 days' notice of the hearing date; the order, complaint and affidavits served on the person personally

   If the complaint and the affidavits satisfy the judge, the court enters an order fixing a hearing date. The order requires at least 20 days' notice to the alleged incapacitated person, the spouse, adult children, parents, whoever has custody, anyone holding a power of attorney, health care directive or trust, and the attorney the court appoints; the person is served personally with the order, the complaint and the affidavits. A separate notice, served personally too, tells the person they may oppose the action in person or by attorney and may demand a jury. If the person has no lawyer, the order appoints one.

   What the rule says 4 sources

   “If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a date for hearing. The order shall require that at least 20 days’ notice thereof be given to the alleged incapacitated person,”

   R. 4:86-4(a) · as code

   “Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged incapacitated person personally and upon each of the other persons in such manner as the court directs.”

   R. 4:86-4(a) · as code

   “A separate notice shall be personally served on the alleged incapacitated person stating that if they desire to oppose the action they may appear either in person or by attorney, and may demand a trial by jury.”

   R. 4:86-4(a) · as code

   “If the alleged incapacitated person is not represented by counsel, the order shall include the appointment by the court of counsel for the alleged incapacitated person.”

   R. 4:86-4(a) · as code

   Fork. If the alleged incapacitated person demands a jury, the paper leaves the main line here for J1 and comes back at G5.

4. G4 The appointed attorney's report; proof of service

   Clock: Report filed at least ten days before the hearing; proof of service not later than ten days before; proposed judgment with the Surrogate ten days before

   The court-appointed attorney is an advocate, not an investigator for the court: they interview the person, ask those who know their circumstances and property, look for any will, power of attorney or health care directive, and at least ten days before the hearing file a report saying what they found and what they recommend on incapacity, on less restrictive alternatives, and on whether any power of attorney or trust should be revoked or curbed. They argue for the person's wishes unless those are patently absurd or dangerous. By the same ten-day mark the plaintiff files proof that everyone was served and that the person was offered the chance to appear and help reaching friends, relatives or a lawyer, and a proposed judgment goes to the Surrogate.

   What the rule says 4 sources

   “At least ten days prior to the hearing date, counsel shall file a report with the court and serve a copy thereof on plaintiff’s attorney and other parties who have formally appeared in the matter.”

   R. 4:86-4(b) · as code

   “Counsel shall protect the rights of the alleged incapacitated person and zealously advocate for their wishes and decisions, so long as such are not patently absurd or pose an undue risk of harm to the client.”

   R. 4:86-4(b) · as code

   “Not later than ten days prior to the hearing, the plaintiff shall file proof of service of the notice, order for hearing, complaint and affidavits or certifications and proof by affidavit that the alleged incapacitated person has been afforded the opportunity to appear personally or by attorney, and that he or she has been given or offered assistance to communicate with friends, relatives or attorneys.”

   R. 4:86-5(a) · as code

   “A proposed judgment of legal incapacity and appointment of guardian shall be filed with the Surrogate not later than ten days prior to the hearing.”

   R. 4:86-6(d) · as code

5. Side rail. If the alleged incapacitated person demands a jury: J1, off the main line at G3.

   1. J1 Answer and jury demand

      Clock: Not later than ten days before the hearing, if the person or anyone noticed will appear by attorney

      The alleged incapacitated person is the one person who can turn this summary hearing into a trial. The notice served at the order for hearing says so: they may oppose, in person or by attorney, and may demand a trial by jury. If they or anyone else who received notice means to appear by attorney, an answer, affidavit or motion is served and filed not later than ten days before the hearing. With a jury demanded, or a jury ordered by the court, the judge no longer decides incapacity alone from the papers; the line rejoins at the hearing with a jury in the box.

      What the rule says 2 sources

      “If the alleged incapacitated person or any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than ten days before the hearing, serve and file an answer, affidavit, or motion in response to the complaint.”

      R. 4:86-5(d) · as code

      “Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court shall, after taking testimony in open court, determine the issue of incapacity.”

      R. 4:86-6(a) · as code

   Rejoins. Back on the main line at G5.

6. G5 Hearing and judgment of incapacity

   Clock: The hearing date fixed in the order; the Surrogate delivers the file to the judge seven days before; a motion for a new trial within 30 days of the judgment

   The person is produced at the hearing by the plaintiff or appointed counsel unless both certify that they cannot attend. Absent a jury, the judge takes testimony in open court and decides incapacity; with the appointed attorney's consent the doctors may testify by telephone, or the court may decide on the affidavits alone. If a guardian is to be appointed the rule sets the order of preference: the spouse or partner living with the person when the incapacity arose, then heirs or friends, then the Office of the Public Guardian for Elderly Adults, then whoever the court finds is in the person's best interests. The judgment is in the form the Administrative Director promulgates, spells out the rights the person keeps, and fixes the amount of the bond unless it expressly waives it with reasons.

   What the rule says 4 sources

   “The plaintiff or appointed counsel shall produce the alleged incapacitated person at the hearing, unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity.”

   R. 4:86-5(c) · as code

   “The court, with the consent of counsel for the alleged incapacitated person, may take the testimony of a person who has filed an affidavit or certification pursuant to R. 4:86-2(b) by telephone or may dispense with oral testimony and rely on the affidavits or certifications submitted.”

   R. 4:86-6(a) · as code

   “The judgment of legal incapacity and appointment of guardian shall be in such form and include all such provisions as promulgated by the Administrative Director of the Courts, including as to the rights of the incapacitated person, except to the extent that the court explicitly directs otherwise. Unless expressly waived therein, the judgment appointing the guardian shall fix the amount of the bond.”

   R. 4:86-6(d) · as code

   “The Surrogate shall provide the entire complete guardianship file to the court for review no later than seven days before the hearing.”

   R. 4:86-6(f) · as code

7. Side rail. If the person is a minor, not an incapacitated adult: M1, off the main line at G1.

   1. M1 Application to the Surrogate for letters of guardianship of a minor

      Clock: County where the minor is domiciled; recorded by the Surrogate on filing

      A child needs no adjudication of incapacity, so a guardianship of a minor does not go through the complaint and the doctors at all. The application goes to the Surrogate's Court of the county where the minor lives, stating the minor's age and residence, the nearest kin, everyone standing in loco parentis and whoever the minor lives with, with an affidavit of what the minor owns. Unless the applicant is the only living parent, everyone with a prior or equal right to the letters must renounce, or be given notice. The Surrogate records the application and, if nothing sends the matter to the Superior Court, issues the letters.

      What the rule says 3 sources

      “Unless a complaint is filed with the Superior Court pursuant to R. 4:83, an application for letters of guardianship of a minor shall be filed with the Surrogate's Court stating the minor's age and residence and the names and addresses of the minor's nearest of kin and of all persons who stand in loco parentis and of the persons with whom the minor resides.”

      R. 4:81-1(a) · as code

      “The application shall be filed in the county where the minor is domiciled at the time or, if at that time the minor has no domicile in this State, then in any county in which the minor has any property.”

      R. 4:81-1(c) · as code

      “If the application is made by the minor's only living parent for letters of guardianship of the minor's estate, no renunciation or notice shall be required; but if made by any other person, there shall be filed either:”

      R. 4:81-2 · as code

   Rejoins. Back on the main line at G6.

8. G6 Qualification, bond, and letters of guardianship

   Clock: Within 30 days after entry of the judgment; the Surrogate notifies the court if the guardian has not qualified by then

   A judgment names the guardian; the letters make the guardian. Within 30 days the guardian qualifies and accepts the appointment before the Surrogate under R. 4:96-1, acknowledging the training and the background screening, and posts whatever bond the judgment fixed. The Surrogate goes over the acceptance and the letters with the guardian, issues the letters, and records them; the letters must say exactly what the judgment says. Miss the 30 days and the Surrogate notifies the court and sends the guardian a notice.

   What the rule says 3 sources

   “Not later than 30 days after entry of the judgment of legal incapacity and appointment of guardian, the guardian shall qualify and accept the appointment in accordance with R. 4:96-1.”

   R. 4:86-6(e) · as code

   “The Surrogate shall issue letters of guardianship following the guardian’s qualification. The Surrogate shall record issuance of all letters of guardianship. Letters of guardianship shall accurately reflect the provisions of the judgment.”

   R. 4:86-6(f) · as code

   “Such qualifications and acceptances may be taken within this State before any person authorized by the laws of this State to administer oaths.”

   R. 4:96-1 · as code

9. G7 Inventory and the annual reports

   Clock: Inventory within 90 days of appointment; a report of financial accounting and a report of well-being every year; the Surrogate told within 30 days of a death or major change

   The guardianship does not end at the letters; it is monitored for as long as it lasts. Unless the judgment waives it, the guardian of the estate files an inventory of everything the person owns and earns within 90 days, then a financial accounting every year; the guardian of the person files a report of well-being every year. The guardian keeps the Surrogate told where both of them are, reports a death or major change within 30 days and sends the death certificate within seven days of receiving it, and cooperates with the vicinage's Guardianship Monitoring Program until the guardianship ends by death, return to capacity, or the guardian's removal or discharge. The Surrogate records what comes in and notifies the court of what does not.

   What the rule says 4 sources

   “Unless expressly waived in the judgment, the guardian of the estate shall file with the Surrogate, and serve on all interested parties, within 90 days of appointment an inventory in such form as promulgated by the Administrative Director of the Courts specifying all property and income of the incapacitated person’s estate.”

   R. 4:86-6(e) · as code

   “Unless expressly waived in the judgment, the guardian of the person shall file with the Surrogate reports of the well-being of the incapacitated person as required by N.J.S.A. 3B:12-42 and in such form as promulgated by the Administrative Director of the Courts. The report shall be filed annually unless otherwise specified in the judgment.”

   R. 4:86-6(e) · as code

   “The judgment shall also require the guardian to keep the Surrogate reasonably advised of the whereabouts and telephone number of the guardian and of the incapacitated person, and to advise the Surrogate within 30 days of the incapacitated person’s death or of any major change in his or her status or health.”

   R. 4:86-6(e) · as code

   “Each vicinage shall operate a Guardianship Monitoring Program through the collaboration of the Superior Court, Chancery Division, Probate Part; the County Surrogates; and the Administrative Office of the Courts, Civil Practice Division.”

   R. 4:86-1(c) · as code

10. G8 Return to capacity

    Clock: A separate summary action, at any time; one affidavit or certification of the kind that opened the case; notice to everyone the original complaint would have named

    The judgment is not for life unless the incapacity is. The person, someone acting for them, or the guardian opens a separate summary action by verified complaint, supported by at least one affidavit of the kind that opened the guardianship, showing that capacity has returned in whole or in part. The court sets a hearing on notice to everyone the original complaint would have named, appoints counsel if the person has none, and takes testimony in open court, with or without a jury. On a prima facie showing the court may end or modify the guardianship if nobody objects; anyone objecting must prove by clear and convincing evidence that the guardianship should continue. The judgment may restore the person and the estate to their own control, subject to the guardian's duty to account. The rules also list rights the person keeps throughout, including the right to petition for this.

    What the rule says 3 sources

    “An incapacitated person, an interested person on the incapacitated person’s behalf, or the guardian may seek a return to full or partial capacity by commencing a separate summary action by verified complaint. The complaint shall be supported by at least one affidavit or certification as described in Rule 4:86-2(b)(2), and shall set forth facts evidencing that the previously incapacitated person no longer is incapacitated or has returned to partial capacity.”

    R. 4:86-7(b) · as code

    “Any party or interested person objecting to the termination or modification must provide clear and convincing evidence that a basis for continuation of the guardianship exists.”

    R. 4:86-7(b) · as code

    “The right to petition the court to modify or terminate the guardianship, including the right to meet privately with an attorney or other advocate to assist with this legal procedure, as well as the right to petition for access to funds to cover legal fees and costs;”

    R. 4:86-7(a) · as code