When a loved-one is no longer able to make decisions about their finances, housing or medical treatment, and the doctors are telling you that this person has lost capacity, a guardian needs to be appointed by a court. Someone needs to step forward to make decisions and handle finances on their behalf. But who?
In New Jersey, the spouse has the primary right of being the guardian. This recognizes the primacy of the marital unit, and also the practicality of the situation. However, in some cases, particularly if we are talking about elderly people, the spouse as guardian may not be practical. In that case, the spouse can renounce his or her right to be the guardian.
The next class of people who can act as a guardian are the children. Again, this recognizes the family unit and is quite practical in most cases. However, the difficulty comes when the children live far away, do not possess the skills or ability to handle the affairs of another, or cannot agree among themselves as to who should act as guardian. It’s a discussion that needs to take place, and, if necessary a mediator should be brought in to help the parties reach a decision. Keep in mind that the children should be talking about their mother or father’s care, not who broke their bicycle when they were five. Those who agree not to act must sign a document indicating that they are renouncing their right.
If no children are available to act as a New Jersey guardian, then other family members may apply. Of course, in order to do so, they will have to present the county surrogate with renouncements of the family members, above, and family members have the same “rank” as they do.
Finally, in some cases, no family members are available or are appropriate. In that case, a guardian will be appointed from the New Jersey Office of the Public Guardian. This is a state agency, which does good work. Unfortunately, it is overworked and it is assigned many people.
In Hunterdon County, however, there is an organization, Volunteer Guardianship One on One, Inc., which recruits volunteers from the community to act as guardians for people who have no one. Many times, the court will gladly appoint a volunteer guardian from this service organization.
If you would like to discuss this issue or other issues about guardianship, contact Bob Shanahan at 908 751 1551. In addition to legal services, mediation services are also offered.