GUARDIANSHIP APPLICATIONS FOR INCAPACITATED ADULTS
PROCEDURES AND EXPECTATIONS

By: BENJAMIN D. ECKMAN, ESQ.
Elder Law Attorney

Occasionally an individual cannot manage his or her affairs as a result of a mental or physical disability. If a legally prepared power of attorney has been signed, the trusted agent can legally act on that person’s behalf. If a power of attorney was not signed, an guardianship application must be filed in Court to permit the trusted family member, friend or professional to handle the financial affairs. Without a legal power of attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse’s signature.

A guardianship is a protective arrangement established by the court system on behalf of a mentally incapacitated individual. Most frequently, guardianships are established on behalf of older adults who have lost mental capacity due to senile dementia, major strokes, or severe mental illness. A guardian is a person appointed by a court to make financial and personal decisions for a mentally incapacitated person. The person for whom a guardian is appointed is called a “ward”.

WHEN IS A GUARDIANSHIP APPLICATION NEEDED

Typically, Guardianships are established when an individual has lost mental capacity and no one can lawfully act for him or her due to the absence of a Living Will and Power of Attorney. There are two types of Guardianship: 1) guardian of the person, and 2) guardian of the property. The guardian of the person is in charge of making personal and medical decisions on behalf of a mentally incapacitated individual. The guardian of the property is in charge of making financial decisions on behalf of such an individual.

Frequently, one person will serve as both guardian of the person and guardian of the property, however, more than one person can serve as guardian. As such, situations can arise when one person can serve as guardian of the person and another can serve as guardian of the property. Also, there can be co-guardians where two or more individuals will have equal authority over both personal, medical and financial matters. Although any responsible adult may serve as guardian, the State statute designates priority first to the spouse of the mentally incapacitated individual. If a spouse is unable or unwilling to serve, an adult child may serve.

PROCEDURE

To successfully establish guardianship, the court requires detailed information regarding the personal, medi¬cal, and financial history of the mentally incapacitat¬ed person. Every guardianship action starts with a complaint filed in Superior Court located in the county where the mentally incapacitated individual is domiciled. The complaint must state the plaintiff’s name, age, domicile and address, the mentally incapacitat¬ed person’s name, age, domicile and address, a list of the names and addresses of immediate family members, and a statement as to the need for a guardianship. The complaint must be accompanied by two certifications from physicians who have examined the mentally incapacitated individual.

These certifications must be based upon examinations that occurred no longer than thirty days prior to the filing of the complaint. In addition to the complaint, the plaintiff must also prepare an affidavit stating the nature, location, fair market value and assessed value of all real estate that the mentally incapacitated person has. The affidavit must also include all the personal estate of the mentally incapacitat¬ed person, including the nature and total or annual amount of any compensation, pension, insurance, or income.

Furthermore, the Order to Show Cause is the document in which the Judge sets forth the hearing date when the petitioner will be established guardian over the ward; the names and addresses of individuals who must be notified of the proposed guardianship; and the appointment of an independent attorney to represent the interests of the mentally incapacitated individual. The court appointed attorney is responsible for advocating on behalf of the mentally incapacitat¬ed person. The attorney must personally interview the individual to determine whether he or she is indeed incapacitated. This attorney will meet with the petitioning family member as well, and file a report with the court indicating that the guardianship is appropriate.

After a guardianship has been granted, the proposed guardian needs to execute qualification forms before the surrogate. Afterwards, the guardian will be issued letters of guardianship. In most cases, the guardian will also need to acquire a bond, which ensures against potential mismanagement or abuse of the mentally incapacitated individual’s assets.

Benjamin D. Eckman, Esq. concentrates his practice on Elder Law & Estate Planning. Elder law is intended to broadly assist “extended living”. An elder law practitioner provides the legal information necessary for persons whose lives will extend or have already extended beyond the time when all children are usually out of the house and when regular employment ceases. After the elder law attorney and client complete their work, legal documents have been drafted, tax considerations have been analyzed, and a plan to protect the elder’s estate has been implemented.

Benjamin D. Eckman’s practice focuses on Estate Planning & Elder Law – legal issues facing senior citizens. Benjamin D. Eckman received his Bachelor’s Degree in Business/Accounting from Touro College and his law degree from Seton Hall University School of Law. He is a member of the New York State Bar Association, the New Jersey State Bar Association, the National Academy of Elder Law Attorneys, the Elder Law Section and Real Property, Probate and Trust Section of the New Jersey State Bar Association, the Union County Bar Association, Passaic County Bar Association and the Bergen County Bar Association. He can be reached at (973) 709-0909, (908) 206-1000 or (201) 263-9161.