Rule 4:86-7.Rights of an Incapacitated Person; Proceedings for Return to Capacity or Review of Guardianship

Last amended January 1, 2024 · Current through June 18, 2026 · Last verified July 7, 2026

In one sentenceRule 4:86-7 preserves a core set of rights for anyone under guardianship -- dignity, privacy, confidentiality, and access to counsel -- and lets that person, an interested person, or the guardian seek a return to capacity or a review of the guardian's conduct.

Full Text of Rule 4:86-7

Text sizeJump to: (a) (b) (c)

(a) Rights of an Incapacitated Person. An individual subject to a general or limited guardianship shall retain:

(1) The right to be treated with dignity and respect;

(2) The right to privacy;

(3) The right to equal treatment under the law;

(4) The right to have personal information kept confidential;

(5) The right to communicate privately with an attorney or other advocate;

(6) The right to petition the court to modify or terminate the guardianship, including the right to meet privately with an attorney or other advocate to assist with this legal procedure, as well as the right to petition for access to funds to cover legal fees and costs; and

(7) The right to request the court to review the guardian’s actions, request removal and replacement of the guardian, and/or request that the court restore rights as provided in N.J.S.A. 3B:12-28.

(b) Proceedings for Return to Capacity.

(1) An incapacitated person, an interested person on the incapacitated person’s behalf, or the guardian may seek a return to full or partial capacity by commencing a separate summary action by verified complaint. The complaint shall be supported by at least one affidavit or certification as described in Rule 4:86-2(b)(2), and shall set forth facts evidencing that the previously incapacitated person no longer is incapacitated or has returned to partial capacity. The court in its discretion may require additional proofs as needed.

(2) The court shall, on notice to the persons who would be set forth in a complaint filed pursuant to Rule 4:86-2, set a date for hearing, appoint counsel for the incapacitated person if the incapacitated person is not represented, and take oral testimony in open court with or without a jury. In addition, the court may appoint a guardian ad litem to evaluate the best interests of the incapacitated person and to present that evaluation to the court in accordance with Rule 4:86-4(d).

(3) On presentation of prima facie evidence for termination or modification of the guardianship, the court may order termination or modification pursuant to subparagraph (4) if no party or interested person objects. Any party or interested person objecting to the termination or modification must provide clear and convincing evidence that a basis for continuation of the guardianship exists.

(4) The court may render judgment that the person no longer is fully or partially incapacitated, that his or her guardianship be modified or discharged subject to the duty to account, and that his or her person and estate be restored to his or her control, or may render judgment that the guardianship be modified but not terminated.

(c) Proceedings for Review of Guardianship. An incapacitated person, or an interested person on the incapacitated person’s behalf, may seek review of a guardian’s conduct and/or review of a guardianship by filing a motion setting forth the basis for the relief requested. On the return date, the court shall inform the incapacitated person of their rights as set forth in paragraph (a) and of the procedures for return to capacity as set forth in paragraph (b).

End

Amendment History

New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.

Source-R.R. 4:102-7; former R. 4:83-7 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002; caption and text amended July 9, 2008 to be effective September 1, 2008; caption and text of former rule deleted, new caption adopted, new paragraphs (a), (b), and (c) adopted August 1, 2016 to be effective September 1, 2016; caption amended, paragraph (a) caption added, paragraph (b) caption added and text amended, paragraph (c) caption added and text amended September 27, 2023 to be effective January 1, 2024.

Plain-English Summary

Being under guardianship doesn't strip away a person's basic dignity. The rule guarantees an incapacitated person the right to be treated with respect and privacy, to equal treatment under the law, to keep personal information confidential, to speak privately with an attorney or advocate, to petition the court to modify or end the guardianship (including access to funds for legal fees), and to ask the court to review the guardian's actions, seek the guardian's removal, or ask that specific rights be restored.

Getting back full or partial capacity starts with a separate summary action — a verified complaint backed by at least one medical affidavit or certification, with the court free to demand more proof. The court sets a hearing, appoints counsel if the person doesn't have any, and takes testimony with or without a jury, and can appoint a guardian ad litem along the way. Prima facie evidence of improved capacity shifts the burden: anyone objecting to ending or scaling back the guardianship must then show clear and convincing evidence that it's still needed. Separately, the incapacitated person or someone acting on that person's behalf can seek review of the guardian's conduct by motion, and the court uses the return date to remind the person of these rights and of the path back to capacity.

Frequently Asked Questions

What rights does a person under guardianship keep?

Rights to dignity and respect, privacy, equal treatment under the law, confidentiality of personal information, private communication with an attorney or advocate, and the ability to petition to modify or end the guardianship or seek review of the guardian's actions.

What must someone show to end or reduce a guardianship once capacity has improved?

Prima facie evidence of improved capacity, after which anyone objecting to ending or modifying the guardianship must show clear and convincing evidence that it's still needed.

Source & verification. The rule text and amendment history are reproduced verbatim from the official New Jersey Rules of Court (N.J. Ct. R. 4:86-7). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. · Official source

Also known as: return to capacityrights of incapacitated personreview of guardianship