Age or illness renders some individuals mentally incompetent. In other cases, an individual may be unable to make decisions independently or manage his affairs. In New Jersey, a person who is mentally incompetent is required to have a guardian appointed by the court. Guardianship is more difficult to obtain than a power of attorney. A judge must decide that there is significant risk of harm to the individual without a guardian. Even if you are already the power of attorney, you will have to petition the court to declare a person mentally incompetent.
Schedule an appointment with the mentally incompetent person’s physician. New Jersey law requires certification from two separate physicians stating that the person is incapacitated. Make sure you get these documents before proceeding. You can obtain these evaluations from the family physician, psychiatrist, neurologist or any other treating physician.
Gather information about the finances of the individual in question. Since you are already power of attorney, you likely are aware of his financial situation and assets. In New Jersey, when petitioning the court to deem the individual mentally incompetent, you must provide details of his finances.
Go to the probate court in the county where the incapacitated person lives. Visit the court clerk and ask for “Verified Complaint” and “Order to Show Cause.” Complete these forms and attach the physician’s certification before returning to the court clerk. Pay any filing fees, which vary from county to county in New Jersey.
Answer any questions from the court-appointed attorney. The court will appoint an attorney or guardian ad litem to represent the incapacitated person. The attorney will interview as many people as possible and review information to make a recommendation to the court.
Attend scheduled hearings. After the attorney has completed his investigation, a judge will hold a hearing on the matter. The incapacitated person is usually required to attend and is interviewed by the judge. The judge then makes a decision. If the individual is declared mentally incompetent, a guardian is appointed. The judge determines your suitability as guardian in a separate meeting.