By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Planning Attorney
The creation of a trust and the filing of a guardianship action, are governed by the laws of the State of New Jersey. Interestingly, the issue of whether a non-citizen can be a trustee or guardian has been an issue that has not been tackled by our courts. A client recently came in seeking to have his wife, an illegal resident from Germany, appointed as the guardian and trustee of their children, and to have his sister, who resides in India, as alternate trustee. The question was whether he could go through with this legally in New Jersey.
The short answer to this question appears to be “yes”, he can legally go through the arrangement, though when it comes to appointing his wife as a guardian, he may have some obstacles. Statutory law and NJ court rule(s) suggest a preference that a guardian or trustee be a resident of the state so that the state has direct jurisdiction over them to monitor their duties and protect the interest of minor children. If there is a challenge to their performance each would be subject to process from a N.J. court. To this end, when it comes to appointing a foreign trustee, the court can require the trustee to designate a power of attorney in this state for service of process, and the trustee may be required to post a bond in case something happens.
While it is theoretically possible, the court has discretion to deny appointing the wife and the sister for these types of positions. A court will be less likely to exercise their power in the case of appointing a trustee, as it usually defers to the wishes of the person who sets up the trust. However, when it comes to appointing a guardian, a court will be a lot more protective to appointing someone who may be an illegal resident. There is a case from the 1930’s, when a New Jersey court rejected an application by an Italian citizen/resident to be named as guardian for a child in New Jersey, noting its lack of jurisdiction and oversight over the Italian citizen.
In my case though the wife lives in New Jersey, she is not a citizen here, so she can be deported, possibly leaving the children without a guardian and defeating the purpose of the guardianship laws.
To discuss your NJ Guardianship and Power of Attorney matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.