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It is my understanding that just because an older person does things that are not wise, does not give the right of an adult child to impose guardianship on them. It is my understanding that if they are a danger to themselves or others than a guardian can be imposed.

If a mother has only one adult child but she believes that she has two adult children (without any facts to support this belief) and then she complains to the other adult child she cannot find the missing son, then is that sufficient to get a court to appoint a guardian? Assume that she does this over and over again for a long time. Would that be sufficient for a court to impose a guardian?

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  • How could a person know what a physician would say on this matter if the parent is not willing to see a doctor?
    – Bob
    Oct 27, 2022 at 0:16
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    A low probability, but there may have been another child. Does the mother remember both birthdays?
    – Jon Custer
    Oct 27, 2022 at 12:57
  • 1
    @JonCuster, Who's to say she didn't have a child out of wedlock, give it up for adoption and not tell offspring that came later? It's not as uncommon as you might think... Oct 28, 2022 at 1:41
  • 1
    @MichaelHall Precisely… not that unusual
    – Jon Custer
    Oct 28, 2022 at 1:52
  • @JonCuster Would she have given the child the same name as her first son?
    – Bob
    Oct 28, 2022 at 22:52

2 Answers 2

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Would that be sufficient for a court to impose a guardian?

Maybe, maybe not, it depends whether the procedures at N.J. Ct. R. 4:86 are followed and complied with, especially Rule 4:86-2(b)(2) which includes a requirement for:

Affidavits or certifications of two physicians having qualifications set forth in N.J.S.A. 30:4-27.2t, or the affidavit or certification of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2, in such form as promulgated by the Administrative Director of the Courts. Pursuant to N.J.S.A. 3B:12-24.1(d)

[...]

To support the complaint, each affiant shall state:

[...]

(F) the affiant's opinion of the extent to which the alleged incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person's condition

[...]

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    Usually as a practical matter, courts focus first on the most serious or concerning recent incident, the most serious contemplated risk and the most characteristic short comings. It isn't uncommon for a prospective ward in these circumstances to not oppose the relief requested if approached compassionately.
    – ohwilleke
    Oct 26, 2022 at 23:55
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Guardianship is governed by the Guardianship Act 1987.

Please note that a guardian is empowered to make lifestyle and medical decisions for the person; they cannot deal with assets or other financial matters, for that you need a power of attorney.

s6 allows an adult person to point someone as their guardian - so, the easiest way to become a guardian is to be appointed willingly by the person.

It is important to note that normal guardianship automatically lapses if the person becomes legally incompetent so, if the intention is for the guardianship to continue in those circumstances, it must be an enduring guardianship. This is, and should be, a normal part of estate planning - I have enduring guardianships and enduring powers of attorney over my wife, parents, and (adult) children and vice-versa - that way if something happens to any of us, someone can immediately make legal decisions.

Guardianship orders fall under Division 3 of the Act and, in particular, s14:

14 Tribunal may make guardianship orders

(1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.

(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to—

(a) the views (if any) of—

(i) the person, and

(ii) the person’s spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has care of the person,

(b) the importance of preserving the person’s existing family relationships,

(c) the importance of preserving the person’s particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order.

Division 3A empowers the Tribunal to make financial management orders (i.e. covering those things covered by powers of attorney). In addition, the Supreme Court has powers under the Supreme Court Act to make similar orders and these, naturally, override the Tribunal if exercised.

The question the Tribunal is fundamentally concerned with is if "the person is a person in need of a guardian"? That is, is the person capable of caring for themselves?

On the face of it, having an imaginary child is not evidence that the person cannot care for themselves.

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