Fredrick P. Niemann

By Fredrick P. Niemann, Esq. a New Jersey Guardianship Attorney

Adult guardianship disputes arise when more than one person asserts them self as the guardian of an older, incapacitated person. This issue typically arises when two children are fighting over who will be the guardian of an older parent who no longer has the capacity to manage his or her own affairs. When all parties to the dispute live in the same state, the issue will be relatively straightforward. However, when the two parties arguing over who should be the guardian live in separate states, jurisdictional issues often complicate the matter, due to the fact that many states have different laws pertaining to how jurisdiction of the matter should be determined.  If a son claims guardianship in New Jersey and a daughter in another state, say Minnesota, the courts in these two separate states may follow different laws dictating which court should have 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 a permanent home with the intention of staying. Domicile can be acquired by three ways:

1. Birth or place of origin
2. Geographical choice of a person who is cognitively able to make that choice
3. Judicial declaration by a judge when a person lacks capacity to choose.

New Jersey law states that wherever an incapacitated adult’s domicile is proven to be, 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 matter. 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 by the courts 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 may then proceed in New Jersey only if the incapacitated adult is found to be domiciled in New Jersey.

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.

The attorneys at Hanlon Niemann routinely handle adult contested guardianship cases.  If you have issues regarding an adult guardianship dispute, please contact Fredrick P. Niemann, Esq., an experienced NJ guardianship attorney.  He can be reached at 732-863-9900 or by email at fniemann@hnlawfirm.com.  He welcomes the opportunity to meet with you to address your matter.