Frequently Asked Questions (FAQ) and Answers About Guardianship in New Jersey
Most folks have little understanding of the term “Guardianship”, how it works, and when it can be used. You know that Mom, Dad, a friend, even a neighbor is declining and needs help, if not now, then in the near future. You may have heard from your friends and family about Guardianships in NJ, but you’re not sure what to do. If I’m describing you, if you’re feeling stressed, confused and/or indecisive, and want the advice and reassurance of an experienced and caring NJ Guardianship attorney, I’m here for you, right now… today. Just reach out to me! I’ve listed below many of the questions clients have asked me over the years with answers. Take a quick read and start your guardianship education.
Q: What is a guardianship?
Q: What does a guardian do?
Q: What is a limited guardianship in NJ?
Q: Is there a difference between a conservator and a guardian under NJ law?
Q: My adult son has mental issues yet refuses to seek medical treatment. I’m worried about his disability. My doctor suggested that I become his guardian so that I can get him the help he needs. Is that a good idea?
Q: I’d like to be my aunt’s guardian, but neither she nor I can afford an attorney. Are there other options?
Q: What happens if someone needs a guardian but has little money and there are no family member or friend who can do it?
Q: How long does it take to get a guardianship approved?
Q: How do I begin the process of being appointed a guardian?
Q: My aging grandmother’s guardian isn’t taking very good care of her and no longer lets me visit. What can I do?
Q: What is the difference between substituted judgment and best interest?
Q: When should the Report of Well-Being be filed?
Q: Does anything need to be attached to the Report of Well-Being?
Q: If a guardian is appointed for someone who previously executed an advance directive for healthcare, who makes medical decisions?
Frequently Asked Questions and Answers About Guardianship in New Jersey
ANSWERS
Q: What is a guardianship in NJ?
A: A guardian is appointed by a court for a person over 18 who’s declared mentally or physically incapacitated – someone who’s unable to make decisions regarding his or her health, living arrangements, finances and life in general. Some reasons may include Alzheimer’s disease, mental disability or a recent stroke.
Guardians in NJ are not limited to just adults. A court can appoint a legal guardian for a child or anyone under 18 whose parents can no longer take care of them. If parents abuse their children, become too ill or die, a guardian can be appointed. Sometimes parents voluntarily turn over guardianship if they think it’s best for their children.
A guardian doesn’t have to be a relative, spouse, friend or lawyer; a guardian can also be an organization or state-run agency. There are also professional guardians, who are paid out of the ward’s funds, though the court must approve the arrangement.
Q: What does a guardian do?
A: A guardian in NJ makes all legal decisions for the incapacitated person, who’s legally called a ward. A guardian must pay the bills, manage the person’s property, decide where the person lives and make all life care and medical decisions. A guardian can also direct and limit the relationships with whom the ward associates with and how the ward can spend their money. That’s why it’s important that the guardian is trustworthy and always considers the ward’s best interests.
“Appointing a guardian should be the last resort,” says attorney Fredrick P. Niemann. Ideally, an adult should make arrangements to take care of their personal, medical or financial decisions ahead of time by putting together the required legal documents, such as:
(1) A durable power of attorney for asset management and life care planning, naming a person to manage the personal and financial decisions of their principle.
A durable medical power of attorney or living will for health care names a person to make medical decisions for someone. A living trust or living will can also do the same. These are considered better alternatives to appointing a guardian because they reflect the person’s wishes instead of relying on the court to decide.
Q: What is limited guardianship in NJ?
A: If possible and appropriate, choosing a limited guardianship over a general guardianship is desirable because it limits the power of a guardian over a person, allowing the individual to retain some legal rights and freedoms. A limited guardianship can work if the ward can still make some decisions for himself. For example, a person may be capable of living on his own and can manage his own money but can’t make his own medical decisions or appropriate lifestyle and care decisions due to a mental illness.
Q: Is there a difference between a conservator and a guardian under NJ law?
A: A court appoints a conservator to manage just a person’s finances; that’s it – not to make personal decisions about where the person lives or whom the person associates with. A conservatorship is granted for some of the same reasons as a guardianship. Some people may be able to handle a small amount of money on a daily basis but can’t manage money on a larger scale.
Q: My adult son has mental issues yet refuses to seek medical treatment. I’m worried about his disability. My doctor suggested that I become his guardian so that I can get him the help he needs. Is that a good idea?
A: Disagreements about lifestyle choices or behavior are common between parents and adult and minor children. It’s important that parents and relatives understand it’s no guarantee that a court will grant a guardianship over an adult child unless it is clear that incapacity puts the adult child at risk of harm to himself or others. When that a minor child becomes an adult, the issues become more complex.
Unfortunately, there’s no such thing as the guardian police. An attorney can help parents become legal guardians, but unless the person is involuntarily committed to a mental hospital, it’s not always possible to force them to start taking their medicine or move to a different house – even if you are legally requiring them to. Still it is worth discussing the issue with a qualified New Jersey guardianship attorney. Many courts are sympathetic to the plight of parents of adult children who are mentally and/or developmentally incapacitated.
Q: I’d like to be my aunt’s guardian, but neither she nor I can afford an attorney. Are there other options available?
A: The guardian in NJ never has to use his or her own money to take care of someone. This is a common misconception. People have concerns about becoming a guardian. By becoming a guardian, they are not legally responsible to pay a person’s bills and expenses from their own account.
The guardian is responsible for paying the ward’s bills out of the ward’s money. However, if the ward doesn’t have any assets or income, then it becomes an issue. Public assistance may then be necessary.
Q: What happens if someone needs a guardian but has little money and there are no family member or friend who can do it?
A: In many states, including New Jersey, the court will appoint a public guardian, usually a state-funded agency, to care for the person. In New Jersey, the Office of the Public Guardian or Ombudsman for the Institutional Elderly can be called upon as well as other non-profit organizations.
There are some charitable organizations that provide these types of services, and professional guardians and attorneys sometimes serve as guardians pro bono.
Q: How long does it take to get a guardianship approved?
A: It depends on the state of residence, but it’s not usually a long, drawn-out process. In New Jersey, depending on the county of filing, it takes anywhere from 30-120 days to get a court hearing approved. New Jersey allows temporary and emergency guardians in the event of a medical or financial emergency.
Q: How do I begin the process of being appointed a guardian in NJ?
A: Not everyone hires an attorney, but it’s usually the safest and smartest thing to do. Guardianship law is complex and it’s changing a lot. Courts are now doing more to supervise guardians instead of just giving appointed guardians free rein.
In most states, such as New Jersey, the person who wants to become a guardian must file a petition asking the court to determine incapacity and appoint a guardian. Guardianship issues are often determined in the probate court of Superior Court.
Q: My aging grandmother’s guardian isn’t taking very good care of her and no longer lets me visit. What can I do?
A: If it’s impossible to settle the dispute with your grandmother’s guardian, you can go to court to ask the judge to either relinquish the guardian’s rights as guardian or order the guardian to allow you more visits with your grandmother. The court will decide based on what’s in your grandmother’s best interest.
Q: What is the difference between substituted judgment and best interest?
A: When using substituted judgment, a guardian makes a decision that the protected person would make if he or she had capacity, typically based on the preferences previously expressed by the individual. In contrast, a decision made based upon best interest requires the guardian to determine what he or she believes would be best for the incapacitated person, either without knowledge of the protected person’s wishes or because doing what he or she wants would be unreasonably dangerous or impracticable.
Examples: (1) Consider the question of whether an elderly incapacitated person should continue to reside in her own home after falling several times, resulting in repeated injuries. If the protected person clearly expresses a desire to live at home, then a guardian using substituted judgment would honor this wish by bringing in home health aides or other assistance. (2) In applying the best interest standard, the guardian could decide to relocate the protected person to an independent living facility with on-site medical staff because remaining at home is unduly dangerous.
As illustrated by the above examples, a guardian should first attempt to apply substituted judgment, in order to achieve the known and reasonable preferences of the protected person. If the incapacitated person’s wishes are unknown, or if fulfilling them would be dangerous or impractical, then the guardian should shift from substituted judgment to a best interest approach.
Q: When should the Report of Well-Being be filed?
A: You must consult the Judgment to determine when you are required to file a report as to the well-being of the incapacitated person. If ordered to report annually, the due date will be based on the anniversary of your Judgment date.
Most guardians of the person are required to report every twelve (12) months. However, the appointing judge may order a different reporting period. For example, the Judgment might only require a report of well-being every three (3) years. The Judgment will also indicate who should be served with a copy of the report.
Q: Does anything need to be attached to the Report of Well-Being?
A: The report of well-being requires an attached statement of the incapacitated person’s condition and functional level. As guardian, you must obtain a written statement from a professional (physician, psychologist, clinician, etc.) who has evaluated the protected person within the reporting period. It is helpful to acquire a professional’s statement well in advance of the due date for the wellbeing report.
Q: If a guardian is appointed for someone who previously executed an advance directive for healthcare, who makes medical decisions?
A: It is extremely important that you, as guardian, know whether you or another person has authority to make healthcare decisions. If the Judgment voids, or cancels, the designation of healthcare proxy, then you should be sure to provide short certificates (and possibly a copy of the Judgment) to any doctor or hospital that may have a copy of the now voided advance directive on file. Failure to do this may result in the hospital contacting a prior healthcare proxy rather than you as guardian.
If you know that another person has been appointed as healthcare proxy, then you should request that the Judgment specify whether the designation of healthcare proxy is voided. If the designation of healthcare proxy is not voided, then the Judgment should provide direction as to how you as guardian are to work with the healthcare proxy. For example, the Judgment may specify that although you are appointed as guardian of the person, you do not have authority over areas or decisions addressed by the advance directive.
It is extremely important to seek clarification from the court, as far in advance as possible, to avoid a situation in which it is unclear to a doctor or hospital who is authorized to make a medical decision for the incapacitated person.
Fredrick P. Niemann Esq.
Elder abuse does happen. It happens among family members more than most people want to believe. If you suspect abuse, report it to your county’s adult protective services or the police.
Contact Fredrick P. Niemann, Esq. about the benefits and disadvantages to guardianship in NJ.
Call him 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.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, A New Jersey Guardianship Attorney