Guardianships in New Jersey
Guardianship is a legal proceeding brought to protect someone who has lost the mental capacity to make their own decisions about finances, medical care, housing or other important areas of their lives. If there is no valid power of attorney document signed by this person (See: Guardianship vs. Power of Attorney), another form of protection is required. This protection comes in the form of a court appointed guardian. (See: What is Guardianship? ). The guardian accepts the duty to make decisions for the “ward” and to handle the ward’s affairs.
Hunterdon County Criminal AttorneyThe courts do not take the request to appoint a guardian lightly. Judges are very careful in making a finding that an individual is incapacitated, because such a finding removes the individual’s liberty and right of self-determination. There are strict legal requirements which must be met. These will satisfy the court of the real need for a guardian. You will need an attorney well versed in these requirements; one who has a good deal of experience handling such matters before the court.
Once Guardianship is granted, the Guardian does not have a simple job. There are annual reporting requirements regarding the finances and well-being of the ward. There is a fiduciary duty to act in the best interests of the ward in all decision making. Having an experienced and knowledgeable attorney at your side will help.
Understanding Court Appointed Authority Regarding the Person and Finances of Another in New Jersey
A guardian may be appointed by a court when an incapacitated person can no longer make their own decisions. Impaired decisionmaking may be the result of dementia, a severe illness, or a developmental disability. The guardian is tasked with making decisions for their “ward.” Such legal authority often authorizes decisionmaking regarding living arrangements, medical decisions, and/or finances.
First, the court must find “by clear and convincing evidence” that a person lacks the mental capacity to make their own decisions. It is not enough to state that the person makes bad or illogical decisions. A loss of mental capacity must be shown. This requires medical evidence.
A court appointed attorney will represent the “alleged incapacitated person.” This attorney will review medical records and interview the proposed guardian, caretakers, and certain interested parties. If there is good reason to oppose the guardianship, the court appointed attorney must do so. Many times, however, guardianship petitions are not opposed, and guardianship is granted.
Once guardianship over an incapacitated person has been granted by a court, the guardian will normally be required to post a bond and file an inventory of the ward’s assets within ninety days of appointment. The guardian becomes a “fiduciary” charged with handling assets and making decisions solely in the best interest of the ward. A guardian should consider the preferences of the ward and carry out the ward’s wishes whenever possible.
Reporting to the Court
Once a year, the guardian is required to file annual reports with the court. This includes a “Well-Being” report containing a physician’s letter and the guardian’s observations of the ward’s health. This also includes a financial report, itemizing how the ward’s money was used in the past year.
Powers of Attorney
If the incapacitated person properly appointed a power of attorney and health care proxy before losing capacity, guardianship proceedings may not be necessary. Inadequate or legitimately disputed documents may be ineffective, making guardianship necessary.
Help is Available
It is important that you see an attorney if you believe that someone may need a guardian. The correct reports and legal documents must be filed with the court. Finding an attorney who is skilled in this area of law is important. You should question your attorney about his or her experience in handling guardianships.
Guardianships are a major part of an Elder Law Attorney’s practice. In addition, an Elder Law Attorney will know about alternative solutions if a guardianship is not appropriate, such as powers of attorney, medical directives, or protective action.
The attorneys at Shanahan & Voigt, LLC have more than thirty years of experience handling guardianships and other matters concerning the elderly. Active in the National Academy of Elder Law Attorneys (NAELA) and its New Jersey Chapter, attorney Robert J. Shanahan, Jr. is also counsel to Volunteer Guardianship One on One, Inc., a non-profit group which trains volunteers to act as guardians for those who have no family to act on their behalf.