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People today are living longer than in generations past. All too often, along with advancing age comes diminished mental capacity. What happens to those who are stricken with an injury or condition rendering them incapacitated or unable to manage their own affairs? Hopefully, they have a family member or loved one, like you, who is willing to act as their legal guardian. This cannot be done with a handshake or an agreement among family members. Guardianship appointment requires a very specific legal proceeding which the office of ?WOODEND LAW ?will handle for you and your loved one. ?In some respects, a guardianship is similar to a Power of Attorney, but the guardianship has far, far greater powers. ? In other words, a Power of Attorney no matter how well crafted, or how many pages long it might be, is no substitute for a Guardianship.

Guardianship actions in New Jersey are filed in the Probate Court and governed by Rule 4:86 and N.J.S.A. 3B:12-24 et seq. Since there is a legal presumption that every individual is competent until adjudicated otherwise, a Court will appoint a guardian only if a person is deemed to fit the legal definition of “incapacitated.” N.J.S.A. 3B:1-2 defines an “incapacitated individual” as someone who is impaired by reason of mental illness or mental deficiency to the extent that he or she lacks sufficient capacity to govern and manage their own affairs. The term is also used to designate someone who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism or other cause to the extent that the person lacks sufficient capacity to govern him or herself and manage their affairs.

What proofs are required?
What issues must be considered?

The process begins with an application, which asks the Court to decide two specific questions: (1) is the individual “incapacitated” and, (2) if so, who should serve as his or her guardian? The first step is for our office to file an action in the Superior Court, Probate Section. The applicant must be accompanied by certifications from at least two physicians familiar with the alleged incapacitated person’s condition. The physicians could be a family doctor, treating physician, pediatrician, neurologist or psychiatrist. Each physician must conduct a personal examination and attest to the mental or cognitive impairment or deficiency, and provide an opinion regarding the alleged incapacitated person’s ability to govern and manage his or her own affairs.

If the judge issues an Order declaring your loved one to be legally incapacitated, that person becomes a ward of the Court and a suitable guardian is appointed to take care and custody of the ward’s person and/or property. The court Order typically requires the guardian to obtain a surety bond. This, essentially, is insurance for the benefit of the ward. The bond is intended to protect the ward against the loss of his or her property if the guardian commits an act of malfeasance related to his or her service, in other words, runs off with or simply wastes the money.

Guardianship for Adult Children with Cognitive Impairment

All individuals, even those with developmental disabilities, reach the age of majority in New Jersey at 18 years of age. Cerebral palsey, Down’s syndrome, or autism are good examples. This means that the parent no longer has legal custody and control over there child. Obviously, most children with developmental disabilities are not able to handle their own affairs just because they have turned 18. This means that parents can no longer legally make decisions on behalf of the child, regardless of the nature of their disability and regardless of whether or not they still live with their family. It is also a very good idea to establish a Special Needs Trust? at the same time, so that if the developmentally disabled child receives any inheritance, they do not lose governmental benefits, such as Medicaid or SSD. ?This subject is discussed further on our Guardianship for Adult Children page.

A guardian for an incapacitated adult assumes the legal authority to make informed decisions on behalf of that person, such as:

  • Making medical decisions
  • Handling financial affairs
  • Deciding where the developmentally disabled adult will live
  • Deciding what type of care and supervision is required
  • Helping how the developmentally disabled adult will interact with the medical community

Other Considerations

The establishment of a guardianship is a legal determination that the person being protected is incapable of making informed decisions. As a result, a person who is subject to a guardianship generally loses all civil rights, including the right to vote, the right to drive a motor vehicle and the right to marry. Before you obtain a court order establishing a guardianship, you need to be reasonably certain that his or her medical and mental health professionals and health care providers will likely agree that a guardianship arrangement is necessary.

For all of your guardianship and estate planning needs, contact Gary F. Woodend, MBA, JD at 609-654-5489.