Guardianship Fights: What to do if Mom has Been “Mom Napped”

Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright,  A New Jersey Guardianship Attorney

grandparentswithchildren_XSmallGuardianship fights occur when more than one person wants to assert themselves as the guardian of an older, incapacitated person. A typical case involves two or more children or relatives fighting over who will be the guardian of a parent who no longer has the capacity to manage his or her own affairs. When all parties to the dispute live in New Jersey, the guardianship process will be relatively straightforward. However, when the two parties arguing over who should be the guardian live in separate states (N.Y., Florida, Carolinas, etc.), jurisdictional issues often complicate the matter, due to the fact that many states have different laws pertaining to how jurisdiction of a guardianship fight should be resolved.

If a son claims guardianship in New Jersey and a daughter in another state (i.e. New York or Florida), the courts in these separate states may have different laws dictating which court has primary jurisdiction, meaning each court may claim they have jurisdiction over the parent.

New Jersey follows a jurisdictional standard related to the “domicile” of the incapacitated adult over whom the dispute is about. Domicile means the place where the incapacitated adult has made his or her permanent home with the intention of staying. Domicile can be acquired by three ways:

  • The place of Birth or place of origin
  • The Geographical choice of the person who is cognitively able to make a choice of where home is
  • A Judicial declaration by a judge when a person lacks capacity to choose.

New Jersey law states that wherever a person’s domicile is proven to exist, that state has jurisdiction over the guardianship dispute. Therefore, it becomes vitally important to determine exactly where the person is domiciled, rather than where they are living at the time the dispute occurs, since the domicile of the adult will determine what state’s court has jurisdiction over the case. If a New Jersey court finds that the adult is domiciled in a state other than New Jersey, it will refuse to hear the case, instead deferring to the court of that person’s domicile.

Determining the domicile of an incapacitated adult is done on a case-by-case basis. New Jersey courts have found that a person who lacks the mental capacity to manage his or her own affairs can nonetheless be capable of deciding where they want to live, although their intention must be more than a “glimmering of rationality.” New Jersey cases often involve a dispute over whether the adult has the mental capacity to choose where they want to be domiciled, as one party will argue the adult is choosing to be domiciled with them in their home state while the opposing party will claim the adult is domiciled where the adult has resided in the past and the adult lacks the mental capacity to change such a decision. An adult guardianship case will proceed in New Jersey only if the incapacitated adult is found to be domiciled in New Jersey.

Guardianship Fights

While New Jersey law follows the domicile standard, other states have different laws determining the jurisdiction of adult guardianship cases. Many states have adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA), which states that jurisdiction over adult guardianship cases is determined by a three-level priority system. The highest priority goes to courts in the “home state” of the incapacitated adult, which is defined as the state where the adult has been physically present for at least six months immediately before the proceeding. The second priority goes to a state which the adult has a “significant connection”, while third priority goes to “other jurisdictions”.

Since the “home state” standard differs from the “domicile” standard, a conflict can develop between courts in different states, with each court asserting jurisdiction over the matter. Because of these differing standards, it is imperative that parties act immediately when an adult guardianship dispute arises. The doctrine of comity states that courts are generally to defer to other courts that have already acquired jurisdiction, so jurisdictional disputes are often settled by which party files the action in their state first. For this reason, acting as soon as possible in adult guardianship disputes is of the utmost importance.

Fred Niemann, Guardianship Lawyer in New Jersey

Fred Niemann, Guardianship Lawyer in New Jersey

The attorneys at Hanlon Niemann & Wright have been handling contested inter-state adult guardianship fights for years. If you have a question regarding an adult guardianship dispute, please contact Fredrick P. Niemann, Esq., an experienced NJ guardianship attorney.

Call him toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com.

He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.

 

 

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