Guardianship

What is Guardianship and why do I need it?
Guardianship is a proceeding in which a judge determines if a person is incapacitated and needs the appointment of another (fiduciary) to assist the person in handling his/her personal and financial needs.

When do you apply for Guardianship?
Guardianship is necessary when an individual is not able to make decisions regarding his/her personal and financial needs due to a disability from birth or acquired through injury or illness. Once a minor child turns 18 a parent or any other individual is not legally allowed to make medical and financial decisions. If the child is competent, then that child can execute a Power of Attorney and Health Care Directive naming his/her parents or others as agent. However if the child is not competent then a parent must file for Guardianship.

What is involved with applying for guardianship?
In New Jersey for a person to be deemed incapacitated, the prospective guardian must file with the court, amongst other documentation, a report and certification from two physicians that have examined the alleged incapacitated person within the past 30 days and deemed him/her unable to handle personal and financial affairs. The court will then appoint an attorney to represent the alleged incapacitated person. That attorney submits a report expressing his/her opinion regarding the need for guardianship. In some circumstances, where the alleged incapacitated person’s wishes and his/her best interest are not the same, the court may also appoint a third attorney to serve as a guardian ad litem. After all reports are submitted a hearing is scheduled before a Judge, unless a trial by jury is demanded, at which time a decision on competency and choice of guardian is made.

How much does it cost to file for Guardianship?
Filing for Guardianship involves the payment of fees for filing the paperwork, fees to the physicians that examine and prepare a report for the court and attorneys’ fees for the prospective guardian and the alleged incapacitated individual for the time spent preparing the court documents and attending the hearing. An uncontested Guardianship will be less expensive than one in which the alleged incapacitated person contests the decision on capacity or two or more persons desire to be guardian. The fees usually are paid from the estate of the incapacitated person.

How long does the entire Guardianship process take?
The entire proceeding typically takes 2-3 months from beginning to end. The initial step involves preparing the appropriate documents to be filed with the court and then in most situations continues on with a hearing before a Judge unless a trial by jury is demanded. If the Guardianship is contested by either the alleged incapacitated person or another individual wanting to be guardian the matter can take longer than a few months and will be more costly.

How long does the Guardianship remain in effect?
A Guardianship may not be revoked by the incapacitated person (ward) or guardian. Only the court may terminate it. An application is made to the court that the incapacitated person is now able to handle his/her personal and financial affairs and has returned to competency. A Guardianship does, however, terminate upon the ward’s death.

Does the incapacitated person lose any rights when a guardian is appointed?
When a guardian is appointed the incapacitated person (ward) will lose certain civil liberties/rights. Some involve the right to vote, marry, drive and choose where one lives. Courts do however recognize and support limited guardianships whereby a person can have a guardian overseeing him/her but may still retain some of the civil liberties/rights that the court determines they are able to manage. Both the physicians examining the alleged incapacitated person and the court appointed attorney set forth in their reports, if applicable, the extent to which they believe the person should retain the right to manage certain areas of his/her life such as residential, educational, medical, legal, vocational or financial decisions. Limited guardianships are utilized mostly in cases involving individuals with special needs as opposed to cognitively impaired senior citizens since parents often have the hope that their children will make improvement in cognitive abilities as technology and medicine advances.

Is a Guardianship more restrictive than a Power of Attorney?
Unlike a Power of Attorney whereby the court does not oversee the actions of the appointed agent, the guardian is subjected to court rules and guidelines that he/she must follow while the Guardianship is in effect. For example, a guardian must file an annual accounting with the court and receive express permission from the court to sell any real estate owned by the incapacitated person. These restrictions are not set forth in a Power of Attorney.