New Jersey Appellate Court Clarifies Judge’s Role in Guardianship Cases

by Jose D. Roman | Jun 2, 2026 | Guardianship, Legal Bulletin

When a court decides to appoint a state agency as guardian over a family member's objection, what due process is the family entitled to? Can a judge make that call based on attorney reports and physician certifications alone — without testimony, without cross-examination, and without detailed findings of fact?

The New Jersey Appellate Division in the case In re F.M.W., decided February 20, 2026, held that the trial court is obligated to first consider all the evidence and make findings by clear and convincing evidence as to whether the person is incapacitated, even if that issue is uncontested. Then when considering who to appoint as guardian the court cannot simply rely on the recommendations of the court-appointed attorney for the incapacitated person. The court must also weigh the wishes of the incapacitated person (such as what is stated in a Power of Attorney), and if the issue of who should be guardian is contested the court must permit discovery on the issue. Finally, the court must conduct a plenary hearing that allows the parties to present evidence, offer witnesses and have the opportunity to conduct cross-examination. 

Background

F.M.W. was an elderly woman suffering from advanced Alzheimer’s dementia. She lived with her sister, R.W., her only relative, who served as her primary caregiver. In 2014 — before her cognitive decline — F.M.W. had executed a durable Power of Attorney designating R.W. as her agent.

In late 2023, Adult Protective Services received an anonymous referral reporting concerns about F.M.W.’s care. Over the following months, a Protective Services social worker conducted multiple home visits and encountered resistance from R.W. — who allegedly refused to provide medical information, blocked access to F.M.W. on some occasions, and was described by F.M.W.’s former aide and a longtime friend as struggling with mental health issues, including paranoia. The court-appointed attorney, William Saxton, Esq., ultimately “strongly opposed” R.W.’s appointment as guardian, describing her as showing “signs of deep instability” and alleging that her neglect had compromised F.M.W.’s physical health.

On September 13, 2024, the probate court held a telephonic hearing. After hearing arguments from counsel and reviewing Saxton’s report and the physician certifications, the court found that R.W. would not be an “appropriate guardian” and appointed the New Jersey Office of the Public Guardian instead. The court issued no findings of fact, made no clear and convincing evidence determination on incapacity, and gave no analysis of F.M.W.’s best interests. F.M.W. died on July 29, 2025, before the appeal could be decided.

The Legal Framework: What NJ Courts Are Required to Do

New Jersey’s guardianship process is governed by N.J.S.A. 3B:12-24 to -35 and Rule 4:86-1 to -8. I covered the process in detail in my posts on Understanding Guardianship in New Jersey: Why It May Be Necessary and How to Obtain It, and What Happens After You’re Appointed Guardian in New Jersey. The procedural safeguards embedded in these rules exist for an important reason: a finding of incapacity results in an individual’s loss of the right of self-determination — one of the most fundamental rights recognized under the New Jersey Constitution.

When a guardianship proceeding reaches the hearing stage, the court is required to undertake a two-step analysis. First, the court must determine by clear and convincing evidence whether the individual is incapacitated. Second, upon making that finding, the court must determine whether to appoint a general or limited guardian and must select an appropriate individual to serve in that role.

On the second question — who should serve as guardian — New Jersey law establishes a clear preference. Under N.J.S.A. 3B:12-25, the Legislature has prioritized surrogate decision-makers in the following order: first, the incapacitated person’s spouse or domestic partner; next, their heirs or friends; and lastly, the Public Guardian. A family member’s preference “must be recognized unless it is shown to the court’s satisfaction that the appointment of next-of-kin would be affirmatively contrary to the best interests of the incapacitated person.” In re Roll, 117 N.J. Super. 122, 124 (App. Div. 1971).

The court may also consider the incapacitated person’s own prior expressed wishes — including a durable Power of Attorney, health care proxy, or advance directive. N.J.S.A. 3B:12-25; see also R. 4:86-4(a)(2).

What the Probate Court Got Wrong

The Appellate Division identified several distinct failures in the probate court’s handling of the case.

No findings on incapacity

Even though incapacity was uncontested, the probate court was still required to make formal findings by clear and convincing evidence. The absence of a dispute does not eliminate the obligation to analyze the evidence and state the basis for the court’s conclusions. The court simply summarized the physicians’ conclusions without conducting any independent analysis.

No consideration of limited guardianship

The court appointed a plenary guardian without considering whether a limited guardianship — one that preserved some of F.M.W.’s decision-making rights — might have been more appropriate. New Jersey law requires this analysis. A person who is incapacitated in some respects may still retain sufficient capacity to make certain decisions, such as where to live.

No consideration of the existing Power of Attorney

F.M.W. had executed a durable Power of Attorney in 2014 designating R.W. as her agent — an expression of her own wishes while she had capacity. The probate court made no mention of this document. While the court was free to give it whatever weight it deemed appropriate, failing to consider it at all was error.

No plenary hearing on the contested issue

This was the central failing. The question of who should serve as guardian was genuinely contested — R.W. denied the allegations against her, and the record contained positive observations contradicting the concerns raised by Protective Services and Saxton. Despite this, the court resolved the contest based on the testimony of court-appointed counsel and written reports alone, without the opportunity for discovery and presentation of evidence, other witness testimony, and without cross-examination. In sum, the Appellate Division found that R.W. did not have a meaningful opportunity to challenge the evidence against her.

The Appellate Division’s Holding

The court acknowledged that the Public Guardian may ultimately have been the correct choice — the decision had no bearing on the merits because F.M.W. had already died. The point was the process. Overriding the statutory preference for a family member, and overriding F.M.W.’s own documented choice of R.W. as her agent, required more than a telephonic hearing and consideration of one-sided reports.

The Appellate Division reversed the probate court’s order and issued the decision for publication — establishing it as precedent for future guardianship proceedings — specifically because the procedural issues raised were “capable of repetition, yet evading review.”

The Planning Lesson: Why Power of Attorney and Advance Directives Matter

The F.M.W. case is also a reminder of why advance planning matters. F.M.W. had the foresight to execute a Power of Attorney designating R.W. as her agent — an expression of her own wishes that the probate court failed to even mention. Had the court given that document its proper weight, it may have changed the analysis significantly. For more on the documents every New Jersey adult should have in place, see my posts on Durable Power of Attorney, Springing Power of Attorney, Living Wills, and Medical Decision Making.