Guardianship is a legal decision made by a court. The decision made is that a particular person has become incapacitated. He or she can no longer make decisions about him or herself. The Court also appoints a “guardian” to make decisions for the person it deems incapacitated. This guardian is answerable to the Court.

Guardians Can Only Be Appointed By A Court

The law states that everyone is presumed able and free to make their own decisions, until a Court deems otherwise. One may not like the decisions another person makes, and the decisions may even be hurtful to that person.  This does not mean that guardianship is appropriate.  Proof must be presented to the Court that the person in question has a medical condition which interferes with their ability to make decisions.  Examples of medical conditions which may lead to guardianship include dementia, severe illness, and developmental disabilities. A Court is bound to protect the liberty of all, even to make bad decisions, and it will not appoint a guardian without the legal requirements having been met.

Guardians Are Usually Family Members

In most states, there is a statute that allows priority of family members to be appointed guardian of a loved one.  Parents or a spouse are primary. Children are next. If there is no family member, others may be appointed if they can show an interest in the incapacitated person.  In addition, each state has a government agency which will become the guardian in the event there is no one else.  In New Jersey, the agency is the Office of the Public Guardian.  However, in a number of states, there are community organizations which can offer individual service, which the government agency cannot do.  An example of such a community organization is Volunteer Guardianship One on One, Inc., located in Hunterdon County, New Jersey.

Guardians Are Supervised By The Court

Once a guardian is appointed by a Court, there are rules which the guardian must follow.  Above all, the guardian is a “fiduciary”, and there are strict laws pertaining to how fiduciaries handle other peoples’ money.  Money can only be used in the interest of the incapacitated person, called a “ward”.  New Jersey requires that the guardian file an annual account of money received and expended by the guardian, along with a report on the general well-being of the ward.  Similar requirements can be found in other states.  However, a guardian’s own personal assets are not exposed to the liabilities of the ward, unless, of course, they steal or misappropriate the ward’s assets.

Some General Rules on Guardians

The requirement that the ward’s money be used for the sole benefit of the ward has already been mentioned.  It may be that a Guardian may want to continue giving gifts of money to relatives, as the ward has done in the past.  However, the Guardian must go back to the Court and ask permission.  Many times, too, the original guardianship order will prohibit the Guardian from selling real estate without the Court’s approval.  Other rules include the need to account to the Court, and to also notify the Court if a ward is moved within the state or out of the state.  Finally, when the ward dies, the Guardian must notify the court, render a final accounting, and formally ask the Court to be relieved of his or her duty.

Guardians Need To Know When To Ask For Help

Being a guardian does not mean that you have to know and do everything yourself.  A guardian may hire accountants, financial advisors, lawyers and others to help carry out their work.   Law Offices of Robert J. Shanahan, Jr. has been a leader in helping families through the guardianship process, offering advice and assistance to those having to act when a loved one can no longer take care of themselves.  Commitment and compassion are required by you, and you can expect the same from Law Offices of Robert J. Shanahan, Jr..  Please give us a call.