How Do I Declare Someone Mentally Incompetent in New Jersey if I Have Power of Attorney?

In New Jersey, a mentally incompetent person may be placed under a guardianship by the courts. However, if a valid power of attorney already exists that grants a competent individual the right to make decisions regarding the care and protection of an incompetent person, a guardianship may not necessarily be needed, depending on the severity of the cognitive issues. Seeking a declaration of incompetence requires filing a verified complaint and an Order to Show Cause that asks the court to establish guardianship over the incompetent person.

The requirements for a valid power of attorney in the state of New Jersey include mental competence, i.e., the person granting the power of attorney must have sufficient mental competency to enter into a valid, binding contract.

Consequently, if the individual’s mental competence has deteriorated to the point that they do not understand what they are doing, or what the resulting impact on their lives and financial needs would entail, any document purporting to grant a Power of Attorney would likely be deemed invalid by the courts.

If the Power of Attorney was signed during a period of mental incompetence, therefore, the concerned individual should seek a guardianship in the New Jersey courts.

Before deciding whether and how to proceed to have someone under a power of attorney declared incompetent, it’s essential to first assess the type and scope of the power of attorney document. The nature of the power of attorney may impact the decisions that are made subsequent to the person’s incompetence.

A power of attorney may grant wide-ranging authority over major life issues such as medical care, finances, housing, education and more, which is known as a general power of attorney. Alternatively, it may restrict the person’s authority to a very specific, named issue or concern, in which case it is known as a special power of attorney.

The document may also be either springing or durable. In a durable power of attorney, the authority begins when the document is executed with all the required formalities. In a springing power of attorney, authority does not begin until the person granting it becomes incompetent.

With a general durable power of attorney, the person holding the power usually has all the legal authority necessary to care for the incompetent person’s needs. Moreover, a special power of attorney will not be effective beyond its stated scope. If the document states the person holding the power is authorized to make financial decisions, they don't have the right to help manage medical care and treatment, for example. In those cases, a guardianship and formal declaration of incompetency should be sought.

As a general rule, most guardianships based on mental incompetency first begin with medical and psychological examinations. Pursuing guardianship in the New Jersey courts can be an expensive undertaking, with the involvement of attorneys and medical professionals adding to the costs. It’s prudent to make sure a guardianship is necessary and likely to be granted before undertaking those obligations.

One way to proceed is by first requesting the family physician to examine the individual’s mental and cognitive state. If the doctor agrees that the person’s competency is in question, under New Jersey court rules the next step is to require a formal evaluation from a physician and from a licensed psychiatrist or psychologist. These experts should be familiar with the rules and requirements of determining mental competency. Their formal reports should be included in the court filings.

Also Read: My Father Is Incompetent & I Need to Become the Power of Attorney

The next step is to file a verified complaint with the court along with an Order to Show Cause. These documents may request guardianship over the person and the person’s property, the person alone or the property alone, which means the guardian will only have authority over the person’s finances and assets.

The initial filings with the court also should include all pertinent information relating to the individual over whom a guardianship is sought and a written description of the person’s general living arrangements, assets, income, government and military benefits, and other pertinent financial information.

Finally, the petitioner should explain in detail why the individual is believed to be mentally incompetent to handle their own affairs. This statement should include a written history of known mental issues and specific examples of behavior, decisions or failures to act that demonstrate incompetence.

The court will generally appoint a lawyer to represent the incompetent individual and assist them in preparing a response to the petition. In some cases, the filing is not contested, and the judge may rule based on the documents alone.

In most cases, however, a hearing is scheduled to consider evidence in support of the complaint and other documents, as well as to hear any evidence opposing the request. The court may on occasion request a second hearing at which further oral testimony from the individuals involved in the case may be heard and considered.

Once the court issues its ruling and a guardian is appointed, the guardian is subject to strict fiduciary requirements and obligations, including rules regarding accounting and reporting back to the court.