The sole parent of a schizophrenic adult daughter consulted me about seeking guardianship. The daughter was putting herself in risky situations and not taking her prescribed medications. Her father hoped that he would be able as her guardian to protect her and see to it that she would take her medications so that she could function well and stay out of trouble.

There are many legal requirements in New Jersey in seeking an adult guardianship on the basis of incapacity (previously incompetency). The applicant must file a verified complaint and other forms with the court. Two of the required forms are affidavits from physicians confirming the incapacity. This is generally a firm requirement. Unfortunately in my case, we could not compel the daughter to submit to doctor exams or otherwise get the affidavits so I advised her father that the chances of obtaining the guardianship were not strong. He still wanted to proceed.

We filed the action and then issued subpoenas to the daughter’s prior physicians for their records. The records evidenced her incapacity. However, none of the physicians were willing to sign the required affidavit, and we could not force them to do so. I also was able to obtain records of a prior hospitalization by subpoena from the county which also supported our case for her incapacity.

In any case where a guardianship is sought, the court will appoint an attorney to represent the interests of the alleged incapacitated person. In my case, the attorney appointed for the daughter seemed reasonable and we had many conversations concerning the case. She agreed that the daughter needed a guardian and agreed not to oppose on the ground that I did not have the physician affidavits. I did submit all of the subpoenaed records to the judge prior to the hearing.

At the hearing, I argued that the court should waive the affidavit requirements as it was very clear from the subpoenaed records and her conduct that the daughter needed a guardian. To my surprise, the court appointed attorney opposed the guardianship at the hearing because we did not have the affidavits.

Fortunately the judge agreed with me and granted the guardianship based on the subpoenaed records. The father indicated to me some time later that his daughter is doing much better due to his involvement and thanked me for protecting her.

Guardianships can be tricky. As an experienced Middlesex County litigation attorney, I can help you and your family through the bumps and pitfalls. Call me today.

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220 Davidson Ave #300, Somerset, NJ 08873

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Charles D. Whelan III has been committed to excellence for over 30 years. With offices located centrally in New Jersey, he is able to provide businesses and individuals with excellent legal services.

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