![]() No one wants to give up their rights and civil liberties. Why, because you already appointed your representative.Īn involuntary guardianship is a serious matter. Did you sign health care documents like a living will or health care proxy, or a medical power of attorney? If you did those documents, when signed while you were competent, addressed your current situation and therefore you may not need a guardian after all. Did you sign a power of attorney? Then your POA can transfer property to your trustee, who will account for it and distribute money for your benefit and handle your day to day activities. If you are incompetent, you need someone to look out for you, to protect you and safeguard your property and money, right? Who will that be? Well, you may have already addressed the possibility of your incapacity years earlier with your estate plan and made those choices! If you created a trust your successor trustee can safeguard your money and property. What does THAT mean? I’ll tell you by use of an example(s). The third way to stop a guardianship is advocating for a “lesser restrictive alternative” to a guardianship that adequately addresses your needs. ![]() Your goal is to keep those decisions with you or someone other than the proposed guardian. So, the issues to be addressed will be who will manage your money, pay your bills, ensure that you’re cared for and be kept safe. In such a case you may still retain control over your finances and your property. You may or may not need a guardian of you as a person, someone who will make all your daily personal decisions for you, like your health care choices, your medications, etc. These rights may include the right to handle your finances, to marry, to choose where you live and who you socialize with. You may need some assistance, or perhaps you may need a guardian for just some activities of daily living, (which means that a court can order some, but not all, assistance for you by way of a limited guardianship). If you are competent, you don’t need a guardian. The other issue is the petition for appointment of guardian. The law mandates that no case can be filed for guardianship without these physician reports and without an initial medical opinion of incapacity unless the alleged incapacitated person or his/her custodians refuse to allow the physician in to conduct the examination. The law requires there to be an examination of the “alleged incapacitate person” by at least two (2) licensed physicians or one (1) physician and a licensed psychologist who file(s) a competency report with the court. That is the “mental health” test of the guardianship proceeding. When a guardianship petition is filed, you typically have two issues presented to a judge: a petition to declare a finding of incapacity, where the court is asked to make a finding that you are (totally) incompetent (partially) incompetent, or not incompetent at all (a finding that you are, indeed, competent). Do you or your loved one understand what he/she is doing, and the consequences of your decisions? Competency in its simplest definition means the ability to care for one’s self, to think through life’s daily decisions, and to analyze and logically reason on your own. Second, a guardianship can be stopped if you are competent to make your own decisions. Who has standing to file for guardianship in New Jersey? Our appellate court has looked at standing in the guardianship setting and requires that it be a close family member by blood relation, a legal representative like a power of attorney, or a person related by marriage, including stepfamily members. If they don’t have that connection to you, you can ask that the petition for guardianship be dismissed for lack of standing. The person who files must be “interested” in you and your welfare and safety. Someone cannot just come into court and claim that someone else needs a guardian. Standing requires there to be some legal connection between the person filing for guardianship and the alleged incapacitated person. Standing is a legal term that means the person who is filing the guardianship application has no right to come into court. There Are Three Defenses to Stopping a Guardianship in New Jerseyįirst, you can object to standing. You may be asking, ‘how do you stop the person who has filed for guardianship’? I’m about to tell you so read on and watch my video on this page. You or a loved one don’t have to just “give in” if someone files for guardianship especially if a guardianship isn’t needed. As a family member, spouse, adult child, or someone who is accused of being incompetent, you have rights.
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