Estate Planning
New Jersey Guardianship & Conservatorship
New Jersey Guardianship 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, 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 NJ 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 NJ 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?
Guardianship and Conservatorship Differences
In the realm of New Jersey estate planning and elder law, it’s essential to understand the distinctions between guardianship and conservatorship. These two legal arrangements, while sharing similarities, serve different purposes and are governed by unique sets of laws and procedures in the state of New Jersey.
Key Differences Between Guardianship and Conservatorship in NJ
Purpose and Scope
Guardianship: This legal relationship is established when an individual, known as the guardian, is appointed by a court to make decisions for another person, known as the ward. In New Jersey, guardianship typically pertains to individuals who are incapacitated due to age, illness, or disability. A guardian has broad responsibilities, including making decisions about the ward’s personal, medical, and living arrangements.
Conservatorship: In contrast, a conservatorship in New Jersey is designed for individuals who, while perhaps facing challenges in managing their financial affairs, are not entirely incapacitated. The conservator’s role is more financially focused, overseeing the conservatee’s assets and financial transactions.
Degree of Incapacity
Guardianship: This arrangement is often pursued when an individual is fully incapable of making or expressing informed decisions about their personal and financial matters. The court’s declaration of incapacity is a critical step in appointing a guardian.
Conservatorship: Conservatorship, on the other hand, is suited for individuals who may still have the capacity to make some decisions but struggle with managing their financial affairs effectively and safely. The individual under a conservatorship may still retain certain rights and decision-making abilities.
Court Involvement and Oversight
Guardianship: New Jersey courts are heavily involved in the guardianship process. From the initial determination of incapacity to the ongoing monitoring of the guardian’s actions, the court plays a pivotal role in ensuring the ward’s best interests are served.
Conservatorship: While also court-appointed, conservators typically experience less stringent oversight compared to guardians. The focus is on financial stewardship, and the conservator must regularly report to the court about the conservatee’s financial status.
Voluntariness
Guardianship: Generally, guardianship is not a voluntary arrangement as it is based on the court’s determination of incapacity.
Conservatorship: In many cases, an individual can voluntarily request a conservatorship arrangement if they feel unable to manage their financial affairs.
Termination
Guardianship: The termination of guardianship in New Jersey usually occurs when the ward passes away, regains capacity, or under certain other legal circumstances.
Conservatorship: Conservatorship can be terminated if the conservatee’s ability to manage their financial affairs improves, or similarly, upon their death or other legal reasons.
While both guardianship and conservatorship are crucial legal tools in New Jersey for assisting individuals with diminished capacity, they are distinct in their purpose, scope, and the degree of court involvement. Understanding these differences is key in determining the most appropriate course of action for an individual’s specific needs. For more detailed advice and assistance, it’s advisable to consult with an experienced New Jersey estate planning and elder law attorney.
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.
Applying for Guardianship in NJ
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 NJ 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.
For help with establishing a guardianship or conservatorship, please schedule a free consultation via the link below.