Proving Incapacity in New Jersey

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A guardian is legally responsible for providing care and managing affairs for an incapacitated adult. State law allows guardians to exercise significant authority to make important decisions on behalf of the incapacitated person.

To become a guardian, an individual must file certain documentation and obtain court approval. However, the court will not grant guardianship authority without proving incapacity in New Jersey. A skilled guardianship attorney can help you through this process.

What Qualifies as Incapacitation?

New Jersey outlines the standard for incapacitation in N.J. Rev. Stat. § 3B:1-2. The rule states an individual is incapacitated if the following conditions impair their physical or mental capabilities:

• Physical illness or disability
• Mental illness
• Intellectual disability
• Substance abuse
• Any condition that causes a lack of capacity to govern themselves or their affairs

The statute defines an intellectual disability as a significant subaverage general intellectual functioning combined with deficiencies in adaptive behavior that arise during the development period.

The level of a person’s incapacitation can affect whether the guardianship is considered general or limited. A general guardianship gives the guardian the power to exercise all rights and powers on behalf of the incapacitated person.

In contrast, a court can establish a limited guardianship when the incapacitated person retains partial capacity to perform certain tasks or care for themselves. For example, an individual who is physically paralyzed but sound in mind could involve a limited guardianship.

Evidence Needed to Establish Incapacitation

The guardianship process is initiated by filing a complaint with the Superior Court’s County Surrogate. The complaint must ask the court to declare that the allegedly incapacitated person, or AIP, is actually incapacitated and formally request appointment as guardian.

Additionally, the person seeking guardianship in New Jersey must provide certain evidence or witness testimony to prove to the court that the AIP is incapacitated. According to N.J. Ct. R. § 4:86-2, applicants must file affidavits or certifications from two physicians or a physician and a psychologist.

If an AIP was committed or confined to a public institution, one of the affidavits or certifications can come from a chief executive officer, medical director, or the chief of service responsible for the AIP’s care and treatment.

The physician issuing the affidavit must have examined the AIP a maximum of 30 days before filing the complaint, although the court has the power to relax this deadline for good cause. The affidavit should state:

• The physician’s opinion about the extent to which the AIP is unable to govern themselves or manage their affairs
• The extent to which the AIP retains sufficient capacity to have the right to manage specific areas of their life, such as making decisions on residence, education, medical, legal, vocational, and financial matters
• The physician’s opinion on whether the AIP is capable of attending the guardianship hearing

The affidavit must state the specific circumstances and conduct by the AIP upon which the opinion was given. Further, the affidavit should include the history of the AIP’s condition.

Courts Can Restore Capacity for Someone Under Guardianship

In some cases, an individual who was declared incapacitated can regain full or partial competency. New Jersey allows a guardian or person declared incapacitated to file an action to fully or partially restore their capacity under N.J. Rev. Stat. § 3B:12-28.

A court will not restore competency unless it is satisfied the person has recovered their sound reasoning abilities and is fit to manage their affairs. If the incapacitation was due to substance abuse, the court must see evidence of reform and that they are habitually sober for one year before the action to restore competency.

To initiate a proceeding to restore capacity, N.J. Ct. R. § 4:86-7 states that the incapacitated person, the guardian or an interested party can file a complaint with the court. The complaint should also include at least one affidavit from a physician, psychologist, substance abuse counselor, or other medical professional as required by the initial guardianship complaint.

The affidavit must state facts showing that the individual has returned to full or partial capacity. The court has the discretion to request additional proof.

Talk With a New Jersey Attorney About Establishing Incapacity

When you have questions about proving incapacity in New Jersey, hiring an attorney can help guide you through this process. A lawyer can provide guidance on the specific types of evidence and affidavits necessary to prove incapacity.

If circumstances have changed regarding an incapacitated person’s ability to take care of themselves, contact an attorney who can also advise you on the steps necessary to restore capacity.