When a guardianship petition is filed in New Jersey, the petitioner typically has to notify people or entities who have an interest in the guardianship proceeding. For example, if you are a family member or friend of the person over whom guardianship is being sought, also known as the alleged incapacitated person (“AIP”), then you may be served with the guardianship pleadings. It then may be that you do not agree with the guardianship or prospective guardian and want to contest the guardianship. In order to contest a guardianship petition, you will need competent attorneys who are well-versed in guardianship law to assist you.
To contest a guardianship proceeding, you initially must respond to the verified complaint. This typically involves filing an answer, and sometimes a counterclaim, against the petitioner. After a petitioner files a verified complaint seeking guardianship, a Superior Court judge issues a court order scheduling a hearing date. The court order will also include the deadline for filing an answer. Your answer must be filed with the County Surrogate within the time frame specified in the court order otherwise your answer can be rejected.
Once your answer is filed, you will then need to be interviewed by the court-appointed attorney for the AIP. The court-appointed attorney is an advocate for the alleged incapacitated person who conducts an investigation of the AIP’s circumstances and then submits a recommendation to the court on whether the AIP is incapacitated and who should be appointed as guardian. While the court-appointed attorney has an interest to protect the AIP, you should be aware that this does not necessarily guarantee that the attorney will recommend what is in the AIP’s best interest.
Ultimately, contested guardianships that do not resolve prior to the return date typically result in a trial or plenary hearing where you will most likely have to testify under oath. It is important to retain an attorney who not only can prepare you for the hearing, but guide you through the process from the start.
A common misconception with guardianships in New Jersey is that the next-of-kin of an alleged incapacitated person is “entitled” to guardianship. This is not true. While preference is given to next-of-kin, a next-of-kin does not automatically receive the guardianship appointment. The Court ultimately appoints the guardian based on what is in the best interest of the alleged incapacitated person. For example, if a child petitions for guardianship over their parent AIP but there is evidence that the child has been misappropriating the AIP’s assets, then the court can absolutely disqualify the child as a prospective guardian. This is a common scenario, and thus, it is important for family members to respond to guardianship petitions to protect their loved ones.
Zack Whelan has considerable experience in guardianship matters. He is frequently appointed as an attorney and fiduciary in guardianship and other probate matters in multiple New Jersey counties. He has a wealth of knowledge of the complexities of guardianship proceedings and will handle unanticipated obstacles in an effective and timely way.
At Whelan & Whelan, we understand the nuances of guardianship proceedings and can provide the representation you need to protect your loved ones.
Give us a call today for your free consultation on New Jersey guardianships.
