Can’t We Settle? In a Guardianship – No.

It is common knowledge that the overwhelming majority of litigations settle without going to trial. In most areas of the law, this simple fact may shape the lawyers’ and clients’ approaches to the dispute.  It is important to be aware that contested guardianships are different in this respect.

It is established law in New Jersey that an alleged incapacitated person cannot consent to a declaration of incapacity and the appointment of a guardian.  Of course, the person (whether on his own or, if he is unable to express preferences, through his court-appointed attorney) can choose not to contest the matter, in which case the court will only see the evidence put forward by the plaintiff and the report of the attorney appointed to represent the alleged incapacitated person.  But, there can be no out-of-court settlement that results in the subject of the guardianship being declared incapacitated.  The court alone has the power to declare someone legally incapacitated.

In some respects, this is a distinction without a difference. In an uncontested matter, the guardianship proceeding becomes almost a formality.  This is slightly less true now than it used to be, as courts are more frequently requiring appearances on uncontested matters, but even still, the appearance on an uncontested matter is not adversarial in any way.

It may have more of an impact, however, in situations in which the alleged incapacitated person agrees he needs “some help,” and may even be willing formally to be declared incapacitated, as long as he had some assurance that he would still have some input.  This can be achieved through some form of limited guardianship, which, generally speaking, means carving out certain rights that the alleged incapacitated person still has and decisions that person may still make.  For example, the parties may agree that the person still has the right to decide where he lives, the right to vote, or the right to make gifts up to a certain amount every year.   The parties may all be in agreement on these points, and the court-appointed attorney may even recommend them, but ultimately, because the court must make findings regarding the alleged incapacitated person, it is the court that has to approve them.  This adds a layer of uncertainty to resolving a matter consensually that does not exist in other areas of the law.  While this may not turn out to be an issue in your guardianship matter, it is important to keep in mind when assessing possible outcomes and the time and cost involved.

If you have any questions about this post or any other related matter, please email one of our estate planning and administration attorneys.