Estate Planning

New Jersey Guardianship & Conservatorship

New Jersey Guardianship Attorney

Sometimes a loved one is no longer able to make decisions due to an illness like Alzheimer’s, dementia, or even a sudden stroke. When this happens, and there isn’t a valid power of attorney in place, the only option is to seek guardianship through the New Jersey court system. This legal process allows a trusted family member, spouse, or even a professional to step in and make decisions on behalf of someone who can no longer manage on their own.

At the Law Offices of Benjamin Eckman, we understand how difficult this situation can be. We are here to help guide you through the guardianship process with compassion and experienced legal support. Our team has helped many families throughout New Jersey navigate the complexities of guardianship proceedings, ensuring their loved ones receive the care and protection they need.

Guardianship Proceedings in New Jersey

A guardianship proceeding starts when a petitioner, often a spouse or close family member, submits paperwork to the court. This paperwork includes medical reports, affidavits from doctors, and details about the person’s estate. Once the documents are filed, the court reviews them and sets a hearing date to determine whether the person is incapacitated and, if so, who should serve as their guardian. As Benjamin Eckman shares, the process can be lengthy and emotionally draining, especially when a loved one must be declared mentally incapacitated in a public setting.

To avoid guardianship proceedings, it’s a good idea to have a power of attorney prepared in advance. However, if guardianship is the only option, working with a knowledgeable guardianship lawyer in New Jersey can make the process smoother and less overwhelming for everyone involved. Our firm is dedicated to providing compassionate representation during what can be a very emotional time for families.

Guardianship vs. Conservatorship: What’s the Difference?

If you’re exploring estate planning options in New Jersey, it’s important to know the difference between guardianship and conservatorship. Although these terms are often used together, they have different purposes and procedures.

Guardianship in New Jersey

Guardianship is established when someone, called the guardian, is appointed by the court to make decisions for another person, called the ward. This typically happens when someone is incapacitated due to age, illness, or disability. A guardian can make decisions about the ward’s medical care, living arrangements, and overall well-being.

Conservatorship in New Jersey

On the other hand, conservatorship is used for individuals who still have some capacity but need help managing their finances. A conservator’s role is focused on financial oversight, such as managing assets and handling money matters. Unlike guardianship, a person can voluntarily request a conservatorship if they feel overwhelmed by financial responsibilities.

How Are Guardianship and Conservatorship Different?

  • Purpose and Scope: Guardianship allows a court-appointed individual to make personal, medical, and living arrangement decisions for someone who is completely incapacitated. Conservatorship is more limited and typically deals only with financial issues.
  • Degree of Incapacity: Guardianship is used when an individual cannot make any informed decisions about their personal or financial matters, while conservatorship may be appropriate if a person still retains some decision-making abilities but needs help with managing their finances.
  • Court Oversight: Guardianship involves a high level of court oversight, from determining incapacity to monitoring the guardian’s decisions. Conservatorships generally have less stringent court supervision.
  • Voluntariness: Guardianship is typically not voluntary, as it is based on a court’s determination of incapacity. However, an individual can voluntarily enter into a conservatorship if they recognize they need help managing their money.
  • Termination: Guardianship usually ends when the ward passes away, regains capacity, or in specific legal circumstances. Conservatorship can end if the individual’s financial management abilities improve, or upon their death.

Unlike guardianship, conservatorship does not require a declaration of incapacity. Instead, it simply requires that the individual consents to have their financial matters managed by someone else. This can be especially useful when an elderly loved one is struggling with memory loss or facing other medical conditions that make financial management difficult but is otherwise able to make personal decisions.

If you’re unsure about whether guardianship or conservatorship is right for your loved one, consulting an experienced New Jersey elder law attorney can help you figure out the best path forward.

When Is a Guardianship Application Needed?

Guardianships are established when an individual can no longer make informed decisions, and no one is authorized to act on their behalf because of the absence of a Living Will or Power of Attorney. There are two main types of guardianship:

  1. Guardian of the Person: Responsible for making personal and medical decisions for an incapacitated individual. This could include anything from medical treatments to deciding on care arrangements.
  2. Guardian of the Property: Manages financial matters for the incapacitated individual, including paying bills and managing investments.

In some cases, one person will serve as both guardian of the person and guardian of the property. It’s also possible to have different people serve in these roles, or even co-guardians who share the responsibilities. Typically, New Jersey state law prioritizes spouses as guardians, but if a spouse is unable or unwilling, an adult child or another responsible person can serve.

Guardianship may also be established for minors when their parents are unable to care for them, whether due to death, incapacity, or other circumstances. In such cases, a close relative is often appointed as the guardian to ensure the child’s needs are met.

How to Apply for Guardianship in New Jersey

To start the guardianship process, you’ll need to file a complaint with the Superior Court in the county where your loved one resides. The complaint should include important details like the names and addresses of both the petitioner and the person needing guardianship, as well as medical certifications from two physicians who have examined the individual in the past 30 days. You’ll also need to provide information on any real estate and financial assets.

After the complaint is filed, the court sets a hearing date. The judge will then appoint an independent attorney to represent the interests of the person who may need a guardian. This attorney will meet with both the person and the family to determine whether guardianship is necessary and appropriate. If guardianship is granted, the proposed guardian must complete qualification paperwork, and may also need to acquire a bond to protect against any potential misuse of assets.

The appointed guardian has a fiduciary duty to act in the best interests of the person they are protecting. This includes making sure financial resources are used responsibly and that the person’s well-being is prioritized at all times. The guardian may also need to provide an annual report to the court detailing their actions on behalf of the incapacitated individual, ensuring continued oversight.

The entire process can be complex, but you don’t have to go through it alone. With guidance from an experienced guardianship attorney like Benjamin Eckman, you can make sure your loved one is protected and cared for. For help with establishing a guardianship or conservatorship, feel free to schedule a consultation via the link below.

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