Estate Planning
New Jersey Guardianship & Conservatorship
New Jersey Guardianship Attorney
At times, individuals are unable to manage their own affairs due to mental or physical disabilities such as stroke, Alzheimer’s, or dementia. If a valid power of attorney was not prepared beforehand, the only legal recourse is to apply for legal guardianship in NJ through the court system. A guardianship application in NJ allows a trusted family member, spouse, or professional to make decisions for the incapacitated person.
As Benjamin Eckman, an experienced guardianship attorney in New Jersey, explains, the guardianship proceeding is a complex process that involves submitting various documents to the court, including a complaint, NJ guardianship forms, affidavits from doctors, and financial reports. The court then evaluates the documents and sets a date for a hearing. While guardianship is essential when no other legal document is in place, such as a power of attorney, it is often seen as a last resort due to the complexity and emotional difficulty involved in declaring someone mentally incapacitated.
Guardianship Proceedings in New Jersey
A guardianship proceeding begins when a petitioner—often a spouse or family member—files the necessary paperwork with the court. This paperwork includes medical reports, affidavits from doctors, and details of the incapacitated person’s estate. Following this, the court reviews the documentation and sets a hearing date to determine the person’s incapacity and appoint a guardian if necessary. As Benjamin Eckman explains, this process can be time-consuming and emotionally challenging for families, especially when an individual must be declared mentally incapacitated in a public court setting.
To avoid the need for a guardianship in New Jersey, it is highly recommended to have a power of attorney prepared in advance. However, when guardianship is required, consulting a guardianship lawyer in NJ or an elder law attorney near me can help families navigate this difficult process.
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. Read more about the differences in the article, What’s the Difference between a Conservatorship and a Guardianship?
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.
How to Apply for Guardianship in New Jersey
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.