Guardianship Attorney in New Jersey

Guardianship Planning

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, a 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.

Benjamin D. Eckman, Esq. represents family members seeking to petition the court to establish guardianship for an incapacitated adult or for a developmentally disabled child who can no longer care for themselves. The Firm has handled complex cases in many of New Jersey’s 21 counties. Often times, court approval is required for Medicaid planning, health care issues and asset preservation and protection on behalf of the incapacitated person.

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 conservatorship is a similar arrangement in which someone is appointed by a court to make financial and personal decisions for a mentally incapacitated person. The person for whom a guardian or conservator is appointed is called a “ward.” Read more about the differences in the article, What’s the Difference between a Conservatorship and a Guardianship?

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, medical, and financial history of the mentally incapacitated 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 incapacitated 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 incapacitated 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 incapacitated 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.