Estate Planning

Wayne New Jersey Guardianship & Conservatorship Attorney

Individuals may sometimes become unable to manage their own affairs due to mental or physical disabilities such as stroke, Alzheimer’s disease, or dementia. If a valid power of attorney was not established beforehand, the only legal recourse is to apply for legal guardianship through the New Jersey court system. This process allows a trusted family member, spouse, or professional to make decisions on behalf of the incapacitated person.

As an experienced guardianship attorney in New Jersey, Benjamin Eckman explains that the guardianship proceeding is complex and involves submitting various documents to the court. These include a complaint, affidavits from doctors, and financial reports. The court evaluates these documents and sets a hearing date. While guardianship is essential when no other legal documents are in place, it is often considered 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 includes medical reports, affidavits from physicians, and details about the incapacitated person’s estate. The court then reviews the documentation and sets a hearing date to determine the individual’s incapacity and appoint a guardian if necessary. This process can be time-consuming and emotionally challenging for families, especially since it involves declaring a loved one mentally incapacitated in a public court setting.

To avoid the need for guardianship, it is highly recommended to have a power of attorney prepared in advance. However, when guardianship is required, consulting a knowledgeable guardianship lawyer or elder law attorney can help families navigate this difficult process.

Guardianship vs. Conservatorship in New Jersey

Understanding the distinctions between guardianship and conservatorship is crucial in estate planning and elder law. While they share similarities, they serve different purposes and are governed by unique laws and procedures in New Jersey.

Key Differences

Purpose and Scope

    • Guardianship: Established when an individual (the guardian) is appointed by the court to make decisions for another person (the ward) who is incapacitated due to age, illness, or disability. The guardian has broad responsibilities, including personal, medical, and living arrangements.
    • Conservatorship: Designed for individuals who may face challenges managing their financial affairs but are not entirely incapacitated. The conservator focuses on overseeing the individual’s assets and financial transactions.

Degree of Incapacity

    • Guardianship: Pursued when an individual is fully incapable of making informed decisions about personal and financial matters. A court declaration of incapacity is required.
    • Conservatorship: Suited for individuals who may still make some decisions but struggle with managing finances effectively. The individual may retain certain rights and decision-making abilities.

Court Involvement and Oversight

    • Guardianship: Courts are heavily involved, from determining incapacity to ongoing monitoring of the guardian’s actions.
    • Conservatorship: Also court-appointed but with less stringent oversight, focusing primarily on financial stewardship.

Voluntariness

    • Guardianship: Generally not voluntary, based on the court’s determination of incapacity.
    • Conservatorship: Can be voluntary if an individual feels unable to manage their financial affairs.

Termination

    • Guardianship: Typically ends upon the ward’s death, regained capacity, or other legal circumstances.
    • Conservatorship: Can be terminated if the individual’s ability to manage finances improves, or upon death or legal reasons.

Understanding these differences is key to determining the most appropriate course of action for an individual’s specific needs. For more detailed information, you can read the article, What’s the Difference Between a Conservatorship and a Guardianship?

When Is a Guardianship Application Needed?

Guardianships are typically established when an individual has lost mental capacity and no one can lawfully act on their behalf due to the absence of a Living Will and Power of Attorney. There are two types of guardianship:

  1. Guardian of the Person: Responsible for making personal and medical decisions on behalf of the incapacitated individual.
  2. Guardian of the Property: Responsible for making financial decisions.

Often, one person serves as both guardian of the person and guardian of the property, but it’s possible for different individuals to assume these roles separately. Any responsible adult may serve as a guardian, but state statutes prioritize the spouse of the incapacitated person. If the spouse is unable or unwilling to serve, an adult child may be appointed.

Applying for Guardianship in New Jersey

To establish guardianship, the court requires detailed information about the incapacitated person’s personal, medical, and financial history. The process begins with filing a complaint in the Superior Court of the county where the individual resides. The complaint must include:

  • The petitioner’s name, age, domicile, and address.
  • The incapacitated person’s name, age, domicile, and address.
  • A list of names and addresses of immediate family members.
  • A statement explaining the need for guardianship.

The complaint must be accompanied by certifications from two physicians who have examined the individual within 30 days prior to filing. Additionally, an affidavit detailing the nature, location, and value of all real estate and personal assets must be submitted.

An Order to Show Cause is then issued by the court, setting the hearing date, specifying individuals who must be notified, and appointing an independent attorney to represent the incapacitated person. This court-appointed attorney advocates on behalf of the individual, assessing their capacity and reporting findings to the court.

After guardianship is granted, the appointed guardian must execute qualification forms before the surrogate and will be issued Letters of Guardianship. In most cases, the guardian will also need to obtain a bond, which serves as a safeguard against potential mismanagement or abuse of the incapacitated person’s assets.

How We Can Help

Establishing a guardianship or conservatorship is a complex and emotionally challenging process. Consulting with an experienced New Jersey guardianship attorney like Benjamin D. Eckman can help you navigate the legal requirements and ensure the best possible outcome for your loved one.

For assistance with establishing a guardianship or conservatorship, please schedule a free consultation with our firm.

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.

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