In some instances, even after an individual is deemed incapacitated and a guardian is appointed, an application may be subsequently filed by the incapacitated person to either terminate the guardianship or to reduce the scope of the guardianship. Such an action is called a restoration of capacity action and is provided for by Rule 4:86-7 of the N.J. Court Rules. This Court Rule sets forth the precise procedure to be followed for any such action, and further, highlights the court’s commitment to treat an incapacitated person with dignity, respect, and to provide as much autonomy as possible to such an individual.

In general, such an action is commenced by the incapacitated person filing an action to either amend the guardianship, or instead, to terminate it entirely. In support of an action to restore partial or complete capacity, an affidavit or certification must be submitted by a physician, or other licensed individual, who has opined that the previously incapacitated person is either no longer incapacitated or has returned to partial capacity. All potentially interested parties, including the current guardian, family members, or other interested persons, shall be placed on notice of the action, and further, the court may appoint a guardian ad litem to evaluate what is in the best interests of the incapacitated person and to present a report to the Court.

At the hearing for this action, the court can either render judgment that the person remains incapacitated, or there has been a change in capacity which renders them only partially incapacitated. Once such a finding is entered, the Court then has broad discretion to craft any future guardianship arrangements which may be necessary, as well as the scope and extent of any such arrangement(s). The guiding principle remains, however, that the court should grant as much autonomy as possible to the incapacitated individual and to treat them with respect and dignity.

This blog only serves to provide a partial overview of this process which can be complex in nature. If you are considering undertaking this process on behalf of an incapacitated person, then you should review in greater detail the nature and extent of such proceedings with competent counsel.

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