Guardianship Lawyers in Woodbury, NJ

Guardianships are designed to protect individuals who are incapable of making significant 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, they may need a surrogate decision-maker. Our family law attorneys can guide you through the process and establish your guardianship.

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 apply to the court 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 the individual is unable to govern themselves and manage their own affairs. The certification of two medical doctors must support the application to the court. Once the court receives the guardianship application, the court will assign an independent lawyer to represent the interests 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 their person or estate on their own.

The term “Guardian” is used to refer to both the guardian of the person of the ward and the guardian of the ward’s 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 the 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, the 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 concerns the terms of their 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. Furthermore, a guardian may also make decisions regarding the ward’s property and assets. The guardian, despite being empowered to make decisions regarding the ward’s property, 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 and 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 of limited guardianship. A full guardianship has been discussed throughout this article, except for 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 appropriate when a ward can manage their financial affairs but is unable to comprehend and appreciate the implications of medical decisions.

In such a case, a limited guardianship appointing the guardian as the medical decision-making authority is permissible. Overall, a limited guardianship may be tailored to reflect the ward’s ability and condition appropriately. Despite the limited ability of guardianship to tailor to an individual’s specific needs, full guardianship is generally favorable in most cases.

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. Parents may and should name at least one successor guardian in their Will if they are 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 as your child’s legal guardian upon your child reaching the age of majority, which is typically 18 years old. Instead, the law considers a child emancipated, regardless of the severity of their disability.  Accordingly, a parent must apply to the court to become a 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 essential life decisions. A guardian is suitable to make life decisions on behalf of the individual.

To schedule a consultation with one of our estate planning attorneys, please call our office (856) 845-0011 or email us.