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Guardianship

guardianshipsGuardianships are designed to protect individuals who are incapable of making important and lucid life decisions, i.e., minors, adults with developmental disabilities and incapacitated persons.  If an individual lacks the capacity and ability to govern themselves, he or she may need a surrogate decision-maker.

How to Become a Guardian

New Jersey courts have jurisdiction to appoint a guardian for a minor, an adult with developmental disability or an incapacitated person. Guardianships are proper when an individual without capacity and ability to govern themselves has not previously signed a Power of Attorney.  In the absence of a Power of Attorney, an individual seeking legal guardianship for an allegedly incapacitated person or adult with developmental disability must file an application to the court in order to obtain legal guardianship.  The application must demonstrate that the person with the disability or incapacity meets the legal test for guardianship.  The legal test for guardianship of an adult is whether one lacks the ability to govern themselves and manage their own affairs.  The application to the court must be supported by the certification of two medical doctors.Once the court receives the guardianship application, the court will assign an independent lawyer to represent the interest of the person with the disability or incapacity.  In New Jersey, the legal guardianship application process takes about two months until a decision is rendered.Guardians

Relationship to the Individual

A Guardianship is a fiduciary relationship created by law for the purpose of enabling one person (the “guardian”) to manage the person or estate, or both, of the person (the “ward”), when the law has determined that the ward is incapable of managing his person or estate on their own.The term “Guardian” is used to refer both to the guardian of the person of the ward, as well as, to the guardian of the wards property, which is also known as a “Conservator.” The guardian of the person takes custody of the ward, looks after the ward’s personal needs and necessities.  In the case of a minor, the guardian of the person performs the duties performed by parents of a minor, except for the duty to support. Whereas, the guardian of the property of the ward, or conservator, is responsible for investing and managing the estate of the ward.  Unlike a trustee of a trust, a guardian does not take title to the ward’s property.  Instead, title remains with the ward.  The guardian of the property only takes custody and control of the property as a fiduciary.  Another distinction between a trustee and a guardian deals with terms of powers.  While a trustee derives his powers from the trust instrument, a guardian derives his powers from the law. A person who is appointed “guardian,” without any further words of limitation, is deemed to serve in both guardianship capacities (of person and of property).

Guardians Roles and Responsibilities

A guardian is empowered by law to make all decisions about the care and treatment of the ward.  Further, a guardian may also make decisions regarding the property and assets of the ward.  The guardian, despite being empowered with the decision making of the ward’s property and asserts, is not financially responsible for the ward.  The responsibility, however, does extend to the fiduciary relationship between the guardian and the ward. In addition to decision-making responsibilities, a guardian is required to visit the ward every three months, file an annual brief updating the court regarding the ward’s condition.

Full Guardianship vs. Limited Guardianship

As a surrogate decision-maker, a guardian can take the form of full guardianship or fill the role as limited guardianship.  A full guardianship has been discussed throughout this article with the exception of the following paragraph describing Limited Guardianships. Limited Guardianship permits a guardian of a ward to make decisions in some, but not all, areas of the ward’s life.  A limited guardianship may be proper when a ward is able to handle his or her financial affairs, but be unable to comprehend and appreciate medical decisions.  In such a case, a limited guardianship appointing the guardian medical decision-making authority is permissible.  Overall, a limited guardianship may be tailored to appropriately reflect the ward’s ability and condition.  Despite limited guardianships ability to tailor to an individual’s specific needs, full guardianships are favorable in most cases.

At Puff & Cockerill, we help offer the following for Guardianship:

Guardianship of Minor Children – Guardianship of a minor provides the guardian autonomy and control over the minor to streamline and improve the minor’s life, including financial and medical decision-making.  Guardianship of a Minor is controlled by New Jersey law in N.J.S.A. 3B:12-12 et seq.  Parent’s may and should name at least one successor guardian in their Will in the event that they and unable to complete their duty as guardian or they predecease the minor reaching the age of majority.

Guardianship for the Developmentally Disabled – As a parent of a child with a developmental disability, you are not automatically appointed his or her legal guardian upon your child reaching the age of majority – 18 years old.  Instead, the law considers a child emancipated, regardless of the severity of their disability.  Accordingly, a parent must file an application to the court to become guardian because only a judge can appoint a guardian for a person over the age of majority.

Guardian of Incapacitated Persons – Guardianships for incapacitated persons may be required for individuals suffering from Alzheimer’s, dementia, or other mental and physical conditions causing them to be unable to make informed and important life decisions.  A guardian is appropriate to fill the shoes of the individual by making these life decisions.To schedule a consultation with one of our estate planning attorneys, please call our office (856) 845 – 0011 or email us.