A guardianship is a legal arrangement that gives you the right to make important decisions in someone else’s life and responsibility for their care. Guardianships can be for adults, children, or both and can apply to either their property (estate) or person. Family members, often with the guidance of a guardianship attorney, can file for guardianships on behalf of their loved ones. But, if you are the proposed guardian, you must also prove your fitness for guardianship in court, often with the assistance of a guardianship attorney.
In many cases, people need a legal guardianship because of an unexpected circumstance. For example, a child might become suddenly ill with severe health issues or an elderly parent might begin to have trouble making good financial or medical decisions. In these situations, a petition for guardianship, often prepared with the help of a guardianship attorney, is filed to make sure this person is protected and has someone to help them with life’s everyday tasks.
The process starts when you file your petition with the clerk of the Superior Court, often with the guidance of a guardianship attorney. After you file your papers, the clerk will set a date for the hearing. You must have someone deliver a copy of the papers and a notice of the hearing to the alleged incapacitated person and to their parents or other family members. This is known as service of process, often handled by a process server or a guardianship attorney. The person who delivers the documents must complete and notarize an Affidavit of Service, which is then filed with the court.
At the hearing, the judge will decide whether to make you a guardian for the person or their estate, sometimes with the presentation of evidence and arguments by a guardianship attorney. The judge will ask you questions and consider the advice of a lawyer appointed to investigate the matter (known as a “guardian ad litem”), often working closely with a guardianship attorney. The judge will also consider any recommendations from the ward’s doctor or other professionals.
If the judge finds that the alleged incapacitated person is incompetent, the court will enter a judgment declaring that they are and appointing a guardian of the person or their estate, often following the recommendations of a guardianship attorney. Generally, the cost of establishing the guardianship will be paid by the estate of the alleged incapacitated person. However, upon a showing that the estate is insufficient to pay these costs, the court may award fees to the guardian ad litem or attorney on a pro bono basis.
If you disagree with the clerk’s decision, you can appeal within 10 days of the decision, often with the guidance of a guardianship attorney. The appeal is heard by a superior court judge. If you appeal the decision of who to appoint as the guardian, a new hearing will be scheduled for you to present evidence and testimony, often presented by a guardianship attorney. It is important that you or your lawyer present evidence and testimony to support your position. Usually, the best evidence includes an expert opinion from your physician or other professionals regarding the level of the alleged incapacitated person’s mental and emotional functioning, often advocated by a guardianship attorney. This will be helpful in the decision of who should be the guardian. It is important that your evidence be presented in a timely manner and with thorough preparation, often with the guidance of a guardianship attorney. Failure to do so could result in the dismissal of your appeal.
Many people associate guardianship with caring for a child, but the law actually covers a range of different circumstances. Parents, siblings or other relatives can petition the court to be designated as a legal guardian of an adult loved one who may have disabilities, mental illness or other challenges that render them incapable of managing their own affairs, often with the guidance of a guardianship attorney. This designation allows the guardian to legally act on behalf of that individual and take responsibility for decisions concerning their personal care, education, living arrangements, and financial issues. A guardianship attorney can help guide a family through this process in New Jersey and determine whether general or limited guardianship is appropriate.
A guardian of the person is responsible for decisions around an individual’s personal, day-to-day maintenance including arranging for housing and accessing medical records. They also make educational decisions, attend school meetings and provide support services to the individual, if needed. They must coordinate medical appointments and keep track of medications, often assisted by a guardianship attorney. They can also choose who the individual spends time with. A general guardian also has the right to give consent in a medical emergency and must be aware of the individual’s daily needs.
The responsibilities of a legal guardian can be overwhelming and can include things such as monitoring health conditions, ensuring the individual receives proper care, educating them and communicating with doctors, often with legal guidance from a guardianship attorney. They must file an annual report with the court, if required, and provide proof of compliance with certain duties such as maintaining a residence and paying taxes, often with assistance from a guardianship attorney. They must also maintain a list of all assets they manage and provide evidence of insurance coverage and financial accountability.
In some cases, the courts will establish a temporary guardian for a child or incapacitated adult while the full guardianship proceeding is ongoing, which can be facilitated by a guardianship attorney. This can happen in cases of abuse and neglect, where human or child protective services have removed the child from their parent’s home, or if a child is not being raised by one of their biological parents. The guardian is given the authority to make important decisions for that child in the interim while their parental rights are investigated.
Once a court grants a guardianship judgment, that individual loses their right to vote in any election or referendum. However, a court can issue limited guardianship allowing them to retain decision-making in areas where they still have the capacity to do so.
Guardianship law varies somewhat from state to state, but in the majority of states a person who is determined to lack the capacity to manage their own finances must be assigned a guardian for those matters, often appointed by a court after the involvement of a guardianship attorney. Guardianship for a person who lacks the capacity to manage their own personal matters must be granted by a court of competent jurisdiction after a thorough evaluation that includes testimony from the individual and other relevant witnesses, often facilitated by a guardianship attorney.
While New Jersey law gives a lot of deference to parents and always prefers to allow them to raise their children in any way they choose, there are circumstances when the Family Court will step in and terminate parental rights, with the involvement of a guardianship attorney. In order to do so, the Family Court will have to be convinced that the parent or guardian has abandoned their parenting duties and placed the child in harm’s way. Then, the Judge must make a determination that it is in the best interests of the child to do so and grant the Order, often with legal guidance from a guardianship attorney.
When Guardianship Can be Terminated in New Jersey
Guardianships can be terminated when the ward regains capacity to care for themselves, when they move out of state, or upon their death. A final accounting must be filed with the Surrogate’s office and a certificate of death must be provided to close the guardianship account, as advised by a guardianship attorney.
To begin a guardianship proceeding, a complaint is filed along with affidavits and reports of at least two physicians who have personally examined the alleged incapacitated person. Then, the judge will schedule a hearing, which can be facilitated by a guardianship attorney. If any family member or other “interested party” objects to the application, a hearing will be scheduled for them to present their evidence.
In most cases, a judge will approve the petition and name the proposed Guardian, often with the assistance of a guardianship attorney. However, there are times when the alleged incapacitated person’s family members or other interested parties object to the application and to the appropriateness of the Guardian, prompting a trial to be conducted to determine if the Guardianship should be granted or denied, often involving a guardianship attorney.
When Third Parties File a Claim for Custody
In many cases, when a guardianship is sought, the issue is not the alleged incapacitated person’s competency, but rather the motivations of the person or persons seeking to gain a legal advantage, which can be challenged with the help of a guardianship attorney. This can often be a matter of financial gain or even a simple jealousy of a loved one.
When the court is unable to find any reasonable cause to believe that the alleged incapacitated person needs a Guardian, or that the proposed Guardian should be appointed, the judge will deny the application. It is important for anyone who has concerns to come forward and voice them, possibly with legal representation from a guardianship attorney.
It is also important to remember that even though a guardianship can be ended, a legal relationship with the alleged incapacitated person continues. That means the ward can still be entitled to income and corpus commissions. In those situations, a percentage based termination fee must be paid to the guardian. It is recommended that the Guardian prepare the termination fee and submit it to the judge a week before the hearing, often advised by a guardianship attorney. This will ensure that the judge will have the necessary paperwork for a final hearing to end the Guardianship. A copy should be sent to all other guardians and family members who have been notified of the proceeding as well.
The Matus Law Group
125 Half Mile Rd #201A, Red Bank, NJ 07701
(732) 785-4453