What is a Guardianship?
In New Jersey, guardianship is a court procedure by which a “guardian”, which can be an individual or an agency, is appointed by a judge to make decisions for another individual who is either below the majority age of 18 or incapable of caring of himself or herself, called the “ward”. A guardian can be a family member, another interested person, or an agency such as the Bureau of Guardianship Services. A co-guardian can also be named.
Unlike a power of attorney, where an individual can consent to granting another person broad legal powers on their behalf, under guardianship the individual becomes the ward of his/her guardian, and effectively loses the legal right to make decisions about his/her own life. Because it effectively eliminates the ward’s right to self-determination, a guardianship is considered a solution of last resort, and can only be granted by the New Jersey Superior Court.
Most typically, guardians are sought for young children without parents, young adults with developmental disabilities, and older adults with advancing age or health problems that render them incapacitated. Often a child's guardian may be named in a parent’s Will. When a parent has minor children, a major function of their Will may be to name the child's guardian. But sometimes, a parent dies without a Will or for some reason has become unable to care for a child – perhaps because of the parent’s own illness or due to other circumstances.
For adult guardianships, a petition to the Superior Court of New Jersey requires the support of medical evidence. Establishing guardianship for an incapacitated adult can be a complicated process. The judge may request to speak with the incapacitated person at a formal Court hearing to determine the full extent of the disability, as well as to assess the person’s ability to communicate and make decisions. The judge must then determine the type of guardianship that is appropriate, and may condition the types of decisions that the guardian can make on the ward’s behalf.
Guardian of the Person versus Guardian of the Person’s Property
One may act as either a guardian of the person, the guardian of the person’s property, or both. The guardian of the person makes decisions about medical treatment, housing arrangements, daily care, insurance and Medicate paperwork, and long-term care arrangements. A guardian of property makes decisions about the handling of the ward’s financial affairs such as managing investments and other assets, and paying debts. To avoid a potential conflict of interest, sometimes the Superior Court of New Jersey will appoint separate guardians of the person and their property.
Experienced Guardianship Attorneys
At LoFaro & Reiser, our experienced New Jersey guardianship attorneys are here to help your loved one. To set up a free initial telephone consultation, complete our online contact form or call us at 201-498-0400.
Serving Northern, Central and parts of Southern, New Jersey.