Who Needs a Guardian

Everyone who is over the age of 18 is presumed competent and deemed able to handle their own affairs and make decisions on their own behalf. Sometimes, situations arise where a Court is asked to declare an individual to be incapacitated. The person may have suffered significant injuries in an accident or may suffer from developmental disabilities from birth or person may begin showing signs of diminished capacity.

Petition for Guardianship

In those cases, an individual or agency would petition the Court to declare the individual to be incapacitated. In order for the Court to determine that an individual is indeed incapacitated, the Court requires medical opinions from two separate doctors (not in the same medical practice) that have examined the individual within 30 days of the filing for Guardianship. Both doctors must conclude that the person is unable to provide their own care.

The applicant must also file an Affidavit listing the assets, debts and annual income of the alleged incapacitated person. The Court then appoints an attorney familiar with the legal standards for declaring someone incapacitated to represent their interests in the proceeding. That attorney is required to make an independent investigation as to the allegations of the Complaint. The attorney will review the filed paperwork, speak with the physicians, meet with the individual, and will also speak with the proposed guardian.

Role of the Court Appointed Attorney

The court appointed attorney recommends to the Court as to who the proper candidate for Guardian should be. Usually, this is a non-issue, especially in families where a child suffers from developmental disabilities. The attorney, however, is charged with making inquiries into the specific family dynamics. This may include speaking with other family members and obtaining information from them.

Appointment of the Guardian

After the submission of the attorney’s report, the Court will conduct a hearing where the Judge hears presentations by the attorneys and testimony of the proposed Guardian. Once appointed, the Guardian must qualify at the local Surrogate’s Office and take the Guardianship Training course offered in the County. The guardian will receive a Guardianship Certificate that now authorizes the guardian to act on behalf of the incapacitated person.

For more information about guardianships, please contact the attorneys at Weiss & Tom. We can be reached at (973) 694-5511 or via email at