A guardianship is a legal proceeding where a judge declares that an individual is incapacitated and is incapable of making life, medical, or financial decisions without the assistance of a family member, caregiver, or other neutral party.
Incapacitated individuals are adults who are impaired by mental illness or deficiency, physical illness, chronic drug or alcoholism, developmental disabilities or other causes that prevent them from governing themselves and managing their affairs. If the Court finds that a person is incapacitated, the Court will appoint a guardian who can make decisions that affect the individual’s health, safety, employment, and financial concerns.
Types of Guardianship Arrangements
Unlike a power of attorney, where an individual is able to consent to granting another person the legal power to act on their behalf, a guardianship is necessary when a person is unable to consent because they lack the requisite mental capacity. When a guardian is appointed, the incapacitated person or ward, effectively loses the legal right to make decisions about his or her own affairs. Since a guardianship effectively removes many of the individual’s legal rights, it should only be established as a last resort in ensuring the safety and well-being of the individual.
Two types of guardianship arrangements may be considered for New Jersey residents.
General Guardianship — Otherwise known as “plenary” guardianship, this arrangement may be used when it is determined that the individual cannot make any decisions on their own.
Limited Guardianship — This arrangement permits the individual to retain part of the decision-making process. Generally, this type of guardianship works for individuals who may be capable of expressing reasonable choices in some areas of their lives such as medical treatment.
How to Establish a Guardianship
A Court will only appoint a guardian, if it declares that your loved one is mentally incapacitated. Before applying for a guardianship, you must obtain two certifications from a physician and/or a physician and a licensed psychiatrist or psychologist. The certifications must opine as to whether your loved one is mentally incompetent, and to what extent your loved one is unfit or unable to manage his or her affairs.
Within thirty (30) days of the medical examination, you must then make an application to the Superior Court of New Jersey, Chancery Division, Probate Part by filing a Verified Complaint and Order to Show Cause. You must also provide an affidavit or verification stating the nature, description, and fair market value of the incapacitated person’s property.
The Court will then set a hearing at which time the alleged incapacitated person’s next of kin or other interested parties may challenge the guardianship application. Prior to the hearing, the Court may appoint a Temporary Guardian for your loved one while your application is pending. The Temporary Guardian services until the Court makes a final determination appointing a permanent guardian. The Court may also appoint an attorney for your loved one who will report to the court and make a recommendation.
After the hearing, if you are appointed as guardian, you will have certain reporting requirements to the Court.
Atlantic County Estate Planning Lawyers at Levine Staller Represent Individuals Seeking Guardianships
If you are considering filing for guardianship on behalf of a loved one, the Atlantic County estate planning lawyers at Levine, Staller, Sklar, Chan & Brown, P.A. will provide legal guidance in all aspects of estate planning and administration. Call 609-348-1300 to speak with one of our skilled attorneys or contact us online. For over 35 years we have provided exceptional legal services to satisfied clients throughout New Jersey, including communities in Atlantic County, Ocean County, and Cape May County.