Increasingly, we Baby-Boomers are being called to care for a parent, or another, who has dementia. At the more advanced stages of this disease, the individual will lose capacity to make decisions about their finances, health care, living arrangements and the like. Unless the person has signed a Power of Attorney, prior to becoming incapacitated, a guardianship action will need to be filed in the New Jersey Superior Court. A Guardian is a person appointed by the Court to make decisions on behalf of an incapacitated person. I have discussed who can be a guardian in my previous article, “Who Can Be A Guardian?”
Guardianships: Why is the Court Involved?
All adults are, by law, deemed to be “competent” to make their own choices and decisions, unless a Court has adjudicated the person to be “incompetent”. This is a major protection by the law of your civil liberties; one which the Courts take very seriously. Guardianships are not granted lightly. The hiring of legal counsel is strongly advised.
What Will A Court Look For?
Initially, a judge will review the complaint filed on behalf of the proposed Guardian. Included must be the affidavits and reports of two physicians who have personally examined the alleged incapacitated person and have found him or her to be incapacitated and in need of a Guardian. If the documents submitted meet the legal requirements, the judge will issue an Order to Show Cause. This Court Order will be sent to all family members and other “interested parties”. It will state that the Court has received the application and has scheduled a hearing on a specific date in the future, usually within sixty days. The Court Order will outline what must be done if one wishes to oppose the application, including deadlines. The Court will also appoint an attorney to represent the alleged incapacitated person. Basically, it is the court appointed attorney’s job to interview the alleged incapacitated person, view and discuss the medical records and interview the proposed Guardian. This attorney will be required to file a report with the court and all counsel with his or her findings within a time frame just prior to the hearing date. He or she must also advise the court of whether or not the alleged incapacitated person can or should appear in court on the day of the hearing. It is necessary that the proposed Guardian cooperate with the court appointed attorney in his or her investigation.
The Guardianship Hearing
Assuming that the court appointed attorney has filed a report agreeing with the guardianship, and that the proposed Guardian is appropriate, the Court will grant the final order of guardianship after the hearing. If there is any opposition to the guardianship or to the appropriateness of the proposed Guardian, the Court will hear the objections and set a trial date. The vast majority of guardianships are approved at the hearing.
Guardian’s Continuing Duty
The final order appointing the Guardian will require certain actions by the new Guardian. Most importantly, the Guardian must appear at the County Surrogate’s office, usually within ten days, to “qualify”. Further, the Guardian will be required to file an inventory of the incapacitated person’s property within ninety days. Then, the Guardian will be required to file an accounting of the Ward’s (the incapacitated person) accounts with the County Surrogate. Forms for the Guardian are provided at https://www.judiciary.state.nj.us. See the tab “Guardianship Monitoring Program”.
Termination of the Guardianship
The guardianship is terminated if the Ward as regained capacity, or upon the Ward’s death. The Guardian may take no further action upon the death of the Ward, including the payment of bills and the like. Exceptions are arranging for the funeral and burial of the Ward. Any Last Will and Testament should be filed with the County Surrogate’s office, unless you have contact with the named Executor. A death certificate and final accounting are required to be filed by the Guardian with the Surrogate, thus ending the guardianship.
From personal experience, I can tell you that being a Guardian is a rewarding experience. It can be challenging, but an experienced attorney can easily guide you through the guardianship process and help you help those who cannot help themselves.
Robert J. Shanahan, Jr. Esq focuses his practice in estate planning, elder law and probate matters. Mr. Shanahan additionally practices in business law and non-profit matters. He is a trained, experienced mediator and offers dispute resolution services, particularly for those arising from probate and elder law matters. Additionally, Mr. Shanahan’s firm, Shanahan & Voigt, LLC, offers a breadth of additional services to families and businesses throughout central New Jersey.
Mr. Shanahan received his Juris Doctor from the Temple University School of Law in 1985, and obtained licensure in New Jersey in the same year. He received a Bachelor of Arts degree in History in 1981 from William Paterson University, with honors. Robert is a member and Past President of the Hunterdon County Bar Association, and is a member of the New Jersey State Bar Association, and its Elder Law and Disability Section. He is also active in the National Academy of Elder Law Attorneys, serving as a Trustee to NJ NAELA. Robert is a member of the Hunterdon Medical Center’s Bio Ethics Committee, and he was awarded a Five Star Financial Services Professional Award for 2016 and 2017.
You may contact Bob at (908)751-1551, or [email protected] For more information, visit www.legalcounselnj.com
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