NJ Guardianship Procedures
In most states, anyone interested in a person’s well-being can request a guardianship.
In New Jersey, a lawyer generally files a guardianship petition for the proposed guardianship hearing in the probate court of Superior Court in the county of residence. Protections exist for protection of the proposed ward. In NJ, these protections are reasonable and fair.
TESTIMONIALS
If you are searching for a special attorney, someone who is experienced, likeable as a person and professional, call Mr. Niemann. I felt good about my choice.
—Frank Mollo, Manchester, NJ
|
New Jersey laws and court rules govern a guardianship when one is being proposed. The proposed ward is entitled to legal representation at the hearing, and the court will oftenn times appoint a lawyer for the allegedly incapacitated person.
At the hearing, or on the papers if no hearing is needed, the court attempts to determine if the alleged person is incapacitated and, if so, to what extent the individual requires assistance. If a determination is made that the person is indeed incapacitated, the court decides if the person seeking the role of guardian will be a responsible guardian.
A guardian can be any competent adult -- the ward's spouse, an adult child, another family member, a friend, a neighbor or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case he or she ever needs a guardian. For more information on Powers of Attorney in NJ, go to www.powerofattorneylawyerinnj.com (click here).
A guardian does not have to be a person at all -- it can be a non-profit agency or a public or private corporation. If the court finds a person is incapacitated and a suitable guardian can't be found, courts in many states, including New Jersey, can appoint a public guardian, a publicly financed agency that serves this purpose.
In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the person's life -- for example, a spouse, adult child or close family relation -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.
COMMENCING AN ACTION FOR GUARDIANSHIP
A guardianship is brought in the Superior Court of New Jersey, Chancery Division, Probate Part in the county where the alleged incapacitated person is domiciled and is initiated by the filing of a complaint by a person known as a Plaintiff/Petitioner seeking to have a Guardian appointed.
The Necessity of Filing a Complaint
The complaint must allege that the respondent is unfit and unable to govern himself and to manage his or her affairs. The detailed requirements for the complaint are set for in Court Rule and must be addressed.
The Necessity of Itemization of Estate Assets and The the
Value(s) of Property
Our state’s court rules also provide that the complaint must list the type, location and fair market value of the following:
a. All real estate the person has or may have a present or future interest, describing the real estate fully, and providing the assessed valuation, and
b. All the personal estate property he or she is, will or may become entitled, including the total or annual amount of any compensation, pension, insurance or income that may be payable to the alleged incapacitated person.
If a plaintiff cannot obtain this information, the complaint must disclose this and explain the reasons why the information cannot be obtained.
An affidavit assist is often submitted to the court in establishing the amount of the Guardian’s bond. Typically, the bond is posted in an amount sufficient to cover the value of the assets that the Guardian can liquidate or have control over.
Necessity of Professional Affidavits as to Incapacity
New Jersey court rules require that a complaint be accompanied by the affidavits of two reputable physicians or one physician and one licensed practicing psychologist, each of whom must set forth significant amounts of professional background information, details of their examination of the individual and their conclusion as to competency.
THE HEARING PROCESS BY THE SUPERIOR COURT
If the court is satisfied with the sufficiency of the complaint, supporting information and professional affidavits, it will sign an Order to Show Cause fixing a hearing date. In the Order setting the date for the hearing, the court will appoint counsel for the alleged incapacitated person.
Court Appointed Counsel for the Alleged Person Who is Incapacitated
Court appointed counsel is charged with the following:
- To personally interview the alleged incapacitated person;
- To make inquiry of persons having knowledge of the alleged
incapacitated persons’ circumstances, his or her physical and mental
state and his or her property.
- Makes recommendations to the courts on the issue of incapacity;
- Makes recommendations concerning the suitability of less restrictive
alternatives than a full guardianship such as a conservatorship or a
limited guardianship in those areas of decision-making that the alleged
incapacitated person may be capable of exercising;
- Whether a case care plan for the incapacitated person should
thereafter be submitted to the court;
- Whether the alleged incapacitated person has expressed preferences
concerning their personal and financial interests;
- Whether good cause exists for the court to order that any power of
attorney, health care directive, or revocable trust created by the
alleged incapacitated person be revoked or the authority of the
person or persons acting thereunder be modified to restricted.
- Court appointed counsel often must address the appropriateness of
the proposed Guardian, and interview him or her to determine if s/he
understands the duties and responsibilities of a Guardian.
The alleged incapacitated person has the right to hire his or her own counsel. If they do, such counsel must notify the court and the court appointed counsel at least five days prior to the hearing.
The requirement of addressing less restrictive alternatives to a full guardianship has been an increasing preference by the courts, whenever possible. This is in accord with a national trend to compel those vested with surrogate decision-making to explore and implement less restrictive alternatives. This trend is further reflected in recent revisions to the New Jersey guardianship statutes.
Less Restrictive Alternatives to Full Guardianship:
The Appointment of a Temporary Guardian of the Person and/or Property in New Jersey law now provides that a party may request the appointment of a temporary Guardian of the person, estate, or both, with notice to the alleged incapacitated person or his or her attorney, or the attorney appointed for the alleged incapacitated person by the court.
Conduct of a Guardianship Hearing in New Jersey Superior Court
Generally, a guardianship hearing is handled by a judge without a trial. This means a judge hears the evidence and makes a decision without a jury. Testimony of the physician or psychologist may be taken in person or by telephone, but can be waived by the judge. In close cases or disputed cases, a professional is required to testify by telephone unless there are complicated medical issues. In lieu of testimony, the court may rely upon the affidavits of the physicians or physician and psychologist, if recommended by the court appointed counsel and, where applicable, the guardian ad litem.
Limited Guardianships
In guardianship actions, the approach generally recommended is for younger disabled persons to bring limited guardianships, now specifically defined and permitted by statute. N.J.S. 3B:12-24.1(a) is an entirely new section of the guardianship statutes, entitled "A Determination by the Court of Need for Guardianship Services, Specific Services.” This section of the court rules provide for a General Guardian, a Limited Guardian, and a Temporary Guardian. If the court concludes that an individual is incapacitated and is without capacity to govern himself or manage his affairs, the court may appoint a General Guardian who will exercise all rights and powers of the incapacitated person. However, if the court finds that an individual is incapacitated and lacks the capacity to do some, but not all of the tasks necessary to care for himself or herself, the court may appoint a Limited Guardian of the person, of the estate, or of both. A court, when establishing a Limited Guardianship, makes specific findings regarding the individual’s capacity, such as residential, educational, medical, legal, vocational, and financial decision making.
The judiciary is transitioning towards an enhanced respect to the rights of self determination of the alleged incapacitated person wherever appropriate. The court has the power to limit the powers conferred on a Guardian and those limitations must be set forth in the certificates of letters guardianship.
In "In re Conroy”, the Supreme Court stated that a ward may be sufficiently competent to make a decision regarding a particular medical treatment.
In "In re Roche”, 296 N.J. Super, 583 (Ch. Div. 1996), the court noted that an incapacitated person's right to self determination must be preserved as much as possible.
In "In re Jacobs”, the court gave a lengthy discussion of an alleged incapacitated person's right to control certain aspects of his or her life, such as medical treatment and where he or she would like to live.
Authority of a New Jersey Guardian to Transfer Assets and Income to a Spouse for Medicaid Planning
In a 2006 revision to the guardianship statutes, a court now has authority to engage in planning and utilizing public assistance programs, including Medicaid, consistent with current Medicaid law. The Court held that when a Medicaid spend-down plan does not diminish an incompetent person's care, involves transfers of the natural persons of his life, and does not contravene any expressed prior intent or interest, then the plan clearly provides for the best interests of the incompetent person.
Authority of a New Jersey Guardian to Do Estate Tax Planning for an Incapacitated Person
In the event an incapacitated person has substantial assets and has done little or no estate tax planning, the guardianship proceeding can be utilized to diminish the anticipated estate tax burden. The court has all the powers over the incapacitated person's estate and affairs that the incapacitated person could exercise, if present and not under a disability, except the power to make a Will, and the court may confer these powers upon a Guardian of the estate.
THE ONGOING NATURE OF A GUARDIANSHIP IN NJ
AFTER ENTRY OF JUDGMENT
Once a judgment is made, a guardian has full authority over the ward's person an estate and all matters relating to it, except for the power to make a will.
A Brief Summary of the Duties and Powers of a Court Appointed Guardian in New Jersey
The duties and powers of the Guardian are set out in New Jersey statutes. The Guardian is not legally obligated to provide for the ward from his own funds, is not liable to a third person for acts of the ward solely by reason of the relations, and is not liable for injury to the ward resulting from the wrongful conduct of a third person providing medical or other care or services, unless the Guardian did not exercise reasonable care in choosing the provider. The Guardian is to act consistently with a previously executed valid power of attorney for health care or advance directive, or revocation, unless that document is altered or revoked by the court.
A judgment of Limited Guardianship may specify the limitations upon the authority of the guardian, or alternatively, the areas of decision-making retained by the person.
Surety Bond
The court will also fix the amount of a surety bond, if any, to be posted by the Guardian. The bond must be issued by a licensed New Jersey insurance company in a form approved by the court. The bond is intended to protect the resources of the incapacitated person from any federal malfeasance by the guardian.
Accountability and Reporting Requirements of the Guardian
The guardian of the property must:
 Prepare an itemized inventory of the ward's property, assets and
income
Invests the ward's funds so that they can be used for the ward's
support and benefit
File regular accountings with the Surrogate's Office
Apply to the court for approval for certain financial transactions (ie.,
sale of home or major assets)
If requested, provide proof that adequate residential and personal
health and care arrangements for the ward have been made, that
sufficient health care and treatment has been provided, and that
available educational and training programs have been made available,
as needed.
Guardians who cannot prove that they have adequately cared for the ward may be removed and replaced by another guardian.
If you have questions about the guardianship process in NJ, 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.
| 
