Introduction to Guardianship in New Jersey: The Process and Procedures Involved


Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright,  A New Jersey Guardianship Attorney

New Jersey has extensive statutes and case law that address guardianships.  The process of deciding a person’s mental capacity 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. Hanlon Niemann & Wright knows these laws and court rules very well.

Incapacity and Guardianships in NJ:

What do they mean?

Laws defining when a person requires a guardian vary from state to state. The standards are different depending on whether a complete guardianship or a limited conservatorship is being sought. In New Jersey, a person is generally considered to be in need of guardianship when he or she shows a lack of capacity to make rational decisions with an understanding of the consequences of those decisions for both their general health and welfare, safety and/or financial well being. A good example is when a person cannot be left alone because of some physical or cognitive condition that renders them at risk of injury, death, or financial exploitation.

A person can’t be declared incompetent simply because he or she makes irresponsible or foolish decisions. The person must show a lack of capacity (understanding) 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.

Who Has Legal Standing to File for Guardianship

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 He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.

Understanding the Process and Procedures
Involved in a New Jersey Guardianship


During a difficult period in my life, I called upon Hanlon Niemann to help me as executor to my father’s estate. Mr. Niemann stayed with me every step of the way. He is very professional in his manner and dealings, not only with me but with the attorneys, law firms, creditors and others involved in the probate of my father’s estate. I am very satisfied with his services.—Ralph Cafaro, Manalapan, NJ

 There are two types of guardians under NJ law:

“Guardian of the person” and “Guardian of the property”

A “guardian of the person” gives a guardian the power to make personal and lifecare decisions concerning a person’s place of residence, living arrangements, home care, social interactions and visitation with others, care programs, medical care, and other day-to-day activities.

A “guardian of the property” gives the guardian the power to make decisions regarding a person’s finances including, banking, social security, veteran benefits, credit cards, bills, borrowing or loaning money and whether to sell, trade, or invest in 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 financial arrangements.  A guardian of the property does not, however, have power over assets held in trust by someone else unless the guardian is also the trustee.

In order to have this authority as a “guardian of the property”, a judge 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 legal obligation 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 personal care to the person.

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

Guardianship law evolves over time much like our society in general. Our population is aging. There are increasing numbers of disabled and incapacitated adult children. 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”).

In response New Jersey has adopted a comprehensive guardianship system of rules and procedures to address the present day reality of guardianship, and to support the role of the guardian in these times of societal change, and changing demographics.

Let me cover with you now the types of guardianship of the person that may be most appropriate for you or the person willing to serve as guardian.

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

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”.

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 as guardian to only handle finances is called a “conservator.”

Alternatively 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 also grant the appointment of a temporary guardianship while a complaint for full or limited guardianship is pending.  It’s ordered when there appears to be emergent circumstances that require an alleged incapacitated person be safeguarded immediately.


My wife and I wanted to express our gratitude for the guidance and patience from you and your staff along this journey. Life is strange at times and the things that bring us together can be just as strange, if not more.

I not only got to put a few bucks in the bank, but got to reconnect with my cousin Sarah, which was a great surprise for me. That alone was worth the journey for me. Getting to know her and the family has been really nice.

I know it was a long day for all of us in mediation, but I really am blessed to have gotten to know you and talk with you. I admire your skills, work ethic and attitude regarding time and Patience. When the opposing attorney was running her big mouth and doing her thing, you never lost your composure, nor your position.  I’m hoping it’s one of the nuggets I’m able to take and implement in my personal/professional life.

The short version of this story is that you have a lot to offer people, you’re a true, trusted advisor. Your words and actions seem to align with your values, which is like common sense, very hard to come by now a days. Your staff does a great job as well. Please let them know that as often as you can.

Keep up the good work Fred and thanks again- Mike Price

Do you think a Guardianship of some type is needed? If so, call our office today and ask for Mr. Niemann to personally discuss your NJ Guardianship toll-free at (855) 376-5291 or e-mail him at  He welcomes your calls and you will find him sensitive, experienced and easy to talk to.