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

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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. We’re here to help you navigate through it all.

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

If you’re concerned about the decisions being made or the lifestyle of a loved one, then call our office today. Ask for Mr. Niemann to personally discuss your matter 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.

Understanding the Process and Procedures
Involved in a New Jersey Guardianship


TESTIMONIAL

I retained Fred Niemann initially for my disabled son’s guardianship application. Then I retained him for a Will for myself and my wife and a Codicil for a Special Needs Trust for my son and could not have been happier with the results, cost and service provided by Fred and his entire staff. From the office décor to the service they were extremely professional and helpful from top to bottom. —Anthony Grande, Esq – Oakhurst, NJ

 

Remember this, it’s important. Guardianships are often filed because an individual has either failed or not effectively created and signed substitute decision-making and life care management document, i.e. Comprehensive Durable Power of Attorney, Living Trust and a Durable Power of Attorney for health care. Many guardianships can be avoided, or made more limited in scope, with the proper legal documents authorizing surrogate decision making. If you would like to learn more about the use of legal documents to avoid guardianship please visit my dedicated website(s) on Power of Attorney, Living Wills and Health Care Directives (Click Here) and Revocable Living Trusts (Click Here).

Guardianships are intended to care for and protect those individuals who cannot take care of themselves. It is not designed to imprison or confine a person to the demands of others who believe the person is misguided and irresponsible.

Another point worth mentioning and one that I often address with clients concerns loss of memory and the need for guardianship. Please make a note of this point “mere failure of memory, physical deterioration and declining mind and sensory powers/thought process alone/or even together is NOT evidence of a sufficient medical finding of mental unsoundness justifying a finding of incapacity and the appointment of a guardian.

I like to use the catch all phrase “presence of mind” when explaining to clients the law of incapacity and guardianship. In other words, in all contexts in which a guardianship may be contemplated, the threshold question to ask is “does the individual have the presence of mind to reasonably (notice the term reasonably, and not “beyond a reasonable doubt”) understand the nature and effect of __X__, or the potential consequences (positive or negative) of __X__.

There was a Superior Court case published in 2010 that I believe is a terrific summary of the law regarding incapacity and guardianships. It remains today a compelling case is the controlling law on competency.

“The basic test of mental competency is whether the mind of the individual is unsound to such an extent as to render him incapable of governing himself and managing his affairs. N.J.S.A. § 3B:1-1, 3B:1-2. Mere failure of memory, decay and feebleness of the intellectual faculties are not evidence of that degree of unsoundness of mind that will justify a finding a person incapacitated. To warrant declaration as an incapacitated person, his faculties must be such as to impart a total deprivation or suspension of the ordinary powers of the mind.

“All persons are by nature free and independent, and have certain natural and inalienable rights, among which are those of enjoying and defending life and liberty…and of pursuing and obtaining safety and happiness.” Unless they endanger themselves or others, competent people ordinarily can choose what they want, even if their choices are irrational or dangerous. Further, competent persons enjoy the right to determine treatment alternatives, including the termination of medical treatment.  The Supreme Court of New Jersey has held that the right to self-determination is a fundamental right. Self-determination is a fundamental right, thus the burden of proof must fall to the challenger of that right. Moreover, “the burden of demonstrating that an individual is incompetent requires proof that is clear and convincing. Evidence is clear and convincing when it enables the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

There are two types of guardianships under NJ law:

“Guardianship of the person” and “Guardianship of the property”

A “guardianship 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, visitation with others, medical care, and other day-to-day activities.

A “guardianship of the property” on the other hand gives the guardian the power to make decisions regarding a person’s finances including, banking, social security, benefits, credit cards, bills, borrowing or loaning money and whether to sell, trade, or invest in real estate and stocks, 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 adults including children. The law presumes that every person is capable of making his or her own decisions, unless a court determines otherwise. If an adult person 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”).

New Jersey has adopted a comprehensive system of rules and procedures to address the present day reality of guardianship, and to support the role of the guardian in 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”.

Once appointed by the court a guardian can be authorized to make legal, financial and health care decisions for the ward without further legal involvement.

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.


TESTIMONIAL

Mrs. Fanok was a true professional who returned calls, emails and kept our family informed throughout the whole process.  It was a pleasure to work with her the past year.  I would recommend your firm and especially Mrs. Fanok anytime, and already have.  She has shown our family true compassion and dedication to our case.  She, in my opinion, is a tremendous and valuable asset to your firm.  Our family thanks you, Mrs. Fanok.

– Peter Taddeo – Marlboro, NJ

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  fniemann@hnlawfirm.com.  He welcomes your calls and you will find him sensitive, experienced and easy to talk to.