Who Can Legally File an Incompetency and Guardianship Proceeding?

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship and Power of Attorney Lawyer

Who can file an incompetency action to obtain a judgement of guardianship?  For most people, it seems like a straight forward answer – family members and a few select others.  But who are these “few select others” and under what circumstances can they bring an action in hopes of becoming or causing the appointment of someone as an individual’s guardian?

In the Matter of Tierney, an individual was 55 years old, an only child and her parents were dead. She had no living aunts or uncles, and six distant cousins who had little to no contact with her.  She was injured in an automobile accident and received a judgment of $400,000.  The plaintiff, Marie Sayer, brought the guardianship action in hopes of becoming Tierney’s guardian.  The question in this case was not whether the individual was incompetent (she was), but whether Marie Sayer – a childhood friend – had standing to bring this action in the first place.

Marie Sayer had assisted her friend over the years with personal and financial affairs.  The incapacitated person had executed a power of attorney to her and her husband.  She had control over her stock certificates, assets, and bank books.  Sayer was not related to Tierney nor was she financially or legally obligated to plaintiff. She was however, the principal beneficiary of her last will and testament.  However, two years after Sayer was named power of attorney, she became concerned about the management of her legal and financial affairs.  Subsequently, she gave her attorney the power of attorney on her behalf.  In response, Sayer brought the incompetency and guardianship action.

Ultimately, the court ruled that Sayer was a mere stranger and that only relatives who are interested in the welfare of the mentally incompetent individual may bring an incompetency action.  The public policy reasoning the court relied upon is key:  The rule was put in place to clearly protect individuals from unwanted interference in their affairs and to shield individuals from defending themselves from ridiculous incompetency charges.  Note how in the facts above – the court never commented once on the woman’s alleged incompetency – that’s because it was a medical fact!  Accordingly, the court did not take issue with this dimension of the case – rather, they addressed the interest of Sayer in the individual’s affairs.  Often, friends of an elderly individual who have little to no living family will attempt to lay claim to this person’s assets through frivolous incompetency actions.  In this case, the court ruled that Sayer was a mere stranger and she had no legal or equitable interests in the Tierney’s affairs.  She was not a relative, next of kin, or a spouse.

To discuss your NJ Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.