INTRODUCTION TO GUARDIANSHIP

IN NEW JERSEY: THE PROCESS

AND PROCEDURES INVOLVED

New Jersey has extensive statutes and case law that address guardianships so the process of deciding a person’s mental incapacity and the appointment of a Guardian are governed by statute (N.J.S.3B:12-1 et seq) and New Jersey Court Rules (Rule 4:86). The statutes and Court Rules are comprehensive and should be followed carefully when considering the appointment of a Guardian.

Call our office today. Ask for Mr. Niemann to personally discuss

your NJ Guardianship toll-free at (855) 376-5291 or e-mail

him at  fniemann@hnlawfirm.com.

There are two types of guardians in NJ:  "Guardian of the

person" and "Guardian of the property"

1.    A "guardian of the person" usually has the power to make decisions concerning a person’s place of residence, living arrangements, home care, care programs, medical care, and other personal decisions.

2.    A "guardian of the property" usually has the power to make decisions regarding a person’s finances including, banking, social security, veteran benefits, paying bills, borrowing or loaning money and whether and how to sell, trade, or invest real and personal property, including a home.  It includes authority to make decisions over all of a person’s finances, property and day-to-day living arrangements.  A guardian of the property does not, however, have power over assets held in trust unless the guardian is also the trustee.

In order to have this authority, a court in New Jersey must first find that a person cannot make decisions about himself/herself or his/her property.  If a court determines this to be the case, it will appoint someone to take on this responsibility; in most cases, a spouse or one or more adult children or in the case of an adult child, one or both parents.  The court may also appoint a brother or sister to serve as guardian with the parents, or alone, after the parents have died.  Once they have secured guardianship for an adult child, parents can appoint a successor guardian in their will, or can temporarily delegate guardianship through a written document called a power of attorney.

The guardian's job is to make sure that the person with a disability or mental illness is to make decisions in the best interest of the person under guardianship and make sure he/she is safe.  The guardian does not generally bear any risk for the person's acts or debts, and is under no legal obligation to provide direct care to the person. 

Call our office today. Ask for Mr. Niemann to personally discuss your NJ Guardianship toll-free at (855) 376-5291 or e-mail him at  fniemann@hnlawfirm.com.  He welcomes your calls and you will find him sensitive, experienced and easy to talk to.

NJ Guardianship Law Has Recently Changed

Recently, changes in the state's guardianship law allow more flexibility in developing appropriate guardianship arrangements.

A general guardianship may be granted if the individual is incapacitated, without the capacity to govern him/herself or manage his/her affairs.

A limited guardianship may be granted if a court finds the individual is incapacitated yet has the capacity to do some, but not all, of the tasks necessary to care for himself/herself.

A court may grant temporary guardianship while a complaint for guardianship is pending.  This process is known as granting a guardian ad litem.

The law presumes that every adult is capable of making his or her own decisions, unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, a court has the power to appoint a substitute decision maker called a "guardian" (who in some states is called a "conservator" or a similar term). Guardianship is a court-supervised legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").

A guardian can be authorized to make legal, financial and health care decisions for the ward. Depending on the terms of the guardianship, the guardian may or may not have to seek court approval for various decisions. In many states, including New Jersey, a person appointed only to handle finances is called a "conservator."

Oftentimes, incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions.  This is called a "limited guardianship".

Incapacity and Guardianships in NJ:  What do they mean?

Laws defining when a person requires a guardian vary from state to state. In New Jersey, the standards are different depending on whether a complete guardianship or a conservatorship over finances only is being sought. However, a person is generally considered to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions for both their general health and welfare and/or financial well being.

A person can't be declared incompetent simply because he or she makes irresponsible or foolish decisions. The person must show a lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.

Concerned about the decisions being made by a loved one, then call our office today. Ask for Mr. Niemann to personally discuss your NJ Guardianship toll-free at (855) 376-5291 or e-mail him at  fniemann@hnlawfirm.com. He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.

GUARDIANSHIP IN NEW JERSEY: AN OVERVIEW

Guardanship Attorney in NJ