Learn the Benefits and Disadvantages of Guardianship in New Jersey

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

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When you hear the terms “guardian” and perhaps “conservator,” what do you think of? You probably think of somebody who is a protector and an advocate of those they take care of. And you would be right. Guardianships are useful when a person cannot make decisions on their own. The guardian advocates on behalf of his or her ward (a ward is the person who needs help) and is responsible for whatever decisions cannot be made by the ward. The legal boundaries of what the guardian can do are set by the judgement of guardianship entered by the court when it determines what the person can do for themselves and what they cannot. But as in many things, being a guardian has its advantages and disadvantages, which I will discuss for you below. Take a quick look.

Benefits: What are the Benefits of Guardianship in NJ?

The main advantage of being a guardian is that it offers stability not only to the ward, but to his or her family. If a person is declared incapacitated and a general guardian is appointed, the person will no longer be able to manage their finances, change his or her will, get remarried, or engage in reckless financial behavior. This protects the person’s assets and income from “predatory family members” or “friends” whose disguised nature is more about the money than the welfare of the person. Financial elder abuse and exploitation is a major issue today, and the guardianship proceeding will put an end to that elder abuse and/or undue influence if you act in time. For example, the appointment of a general guardian by the Court can prevent a vulnerable elder from marrying, particularly to a younger (say 30+ year old stripper or the “GQ pool boy”) who will then become a predatory spouse.

The appointment of a general guardian prevents a tug of war among competing family members or “friends” who want to make decisions for the vulnerable elder, especially siblings. This is because the discovery of evidence and information during the guardianship [proceeding will lock in the testimony of the alleged incapacitated person (or others) that will be beneficial in a subsequent will contest or legal action to recover misappropriated assets once the court declares that the person is incapacitated. If a general guardian is not appointed, the alleged incapacitated person will retain the power to change his or her estate plan and disinherit the person who seeks the appointment of a guardian. Ultimately, the guardianship proceeding may lead to a global settlement among interested parties who are vying for control.

Financial decisions over who gets what aren’t the only benefits of a guardianship proceeding. Decisions regarding medical care and life care planning services can be made to enhance the quality of life of a loved one. This is critical when the person is unconscious and cannot authorize life-saving procedures, or if the wishes of the ward should he or she is on life support is that life-saving treatments should be withheld. The guardianship proceeding may result in the engagement of professionals who can assist the caregiver and alleviate symptoms of caregiver “burnout as well”. Below please find my bullet point listing of what I consider to be guardianship advantages:

Guardianship Offers Stability.

  • If a person is declared incapacitated and a general guardian is appointed, the person will no longer be able to manage their finances, change his or her will or engage in reckless financial behavior. This protects the person’s assets and income from “predatory family members” or “friends” whose disguised nature is more about the money than the welfare of the person. Financial elder abuse and exploitation is a major issue today.
  • Discovery of evidence and information during the guardianship proceeding may lock in the testimony of the alleged incapacitated person or others that will be beneficial in a subsequent will contest or legal action to recover misappropriated assets.
  • The guardianship proceeding may flush out and put an end to elder abuse and/or undue influence.
  • The appointment of a general guardian will prevent a vulnerable elder from marrying, particularly to a younger, potentially predatory spouse.
  • The appointment of a general guardian prevents a tug of war among rivals who want to make decisions for the vulnerable elder, especially siblings.
  • The guardianship proceeding may lead to a global settlement among interested parties who are vying for control.
  • The guardianship proceeding may lead to the return of the ward’s assets.
  • The guardianship proceeding may result in the engagement of professionals who can assist the caregiver and alleviate symptoms of caregiver “burnout”.
  • Appropriate and necessary reduced medical care and life care planning services can be started to enhance the qualify of life of a loved one.

Learn the Benefits and Disadvantages of
Guardianship in New Jersey

Disadvantages: What are the Disadvantages of a Guardianship in NJ 

Quite simply, a person’s freedom and basic rights are limited by the decisions of the guardian. While New Jersey law favors leaving as much decision-making power to the individual, the fact remains that the guardian ultimately has the power as given to him or her by the Superior Court, and will make decisions he or she believes is in the best interest of his or her ward. This can lead to an unnecessary infringement of the alleged incapacitated person’s privacy, freedom and loss of decision making authority.

A guardian can also become overly protective, dominating and arbitrary. While New Jersey law allows one to have a guardian removed and another substituted, the cost of these proceedings may be too costly for some individuals and families. Since guardianships can be contested, there may be a lot of money spent to pay for that proceeding, so additional costs in removing a guardian is just an unacceptable option.

State law imposes a number of requirements on the guardian. One big requirement is that the guardian keeps accurate books and records of all financial transactions. If a person is appointed by the Court as a guardian for the vulnerable adult and does not maintain careful records, the guardian can be surcharged (meaning fined and penalized) for assets that cannot be accounted for properly. The Court may also impose other types of reporting requirements concerning the well-being of the ward and what was done on behalf of him or her. For those that may not have the time to take this on, it may not be wise for them to become a guardian or institute a proceeding to have them appointed as one.

I’ve listed below in bullet point format, the disadvantages of a guardianship for you to consider:

  • A person’s freedom and basic rights are limited by the decisions of the guardian.
  • NJ law requires that guardians keep accurate books and records of all financial transactions and file annual accountings with the County Surrogates Office.
  • If a person is appointed by the Court as a guardian for the vulnerable adult and does not maintain careful records, the Guardian may be surcharged (meaning fined and penalized) for assets that cannot be accounted for properly.
  • If a general guardian is not appointed but only a limited guardianship is applied for, the alleged incapacitated person may still legally retain the power to change his or her estate plan and disinherit the person who seeks the appointment of a guardian.
  • A guardianship proceeding may become costly if contested. The alleged incompetent person or other family member(s) are allowed to contest a proposed guardianship.
  • There may be an unnecessary infringement of the alleged incapacitated person’s privacy, freedom and loss of decision making authority.
  • A guardian can become overly protective, dominating and arbitrary.

 

Fred Niemann, Guardianship Lawyer in New Jersey

Fred Niemann, Guardianship Lawyer in New Jersey

The benefits and disadvantages must be weighed before deciding to go through with this. 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.

 

 

 

 


 

Guardianship lawyers serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Mercer

County, Middlesex County, Bergen County, Morris County, Burlington County,

Union County, Somerset County, Hudson County, Passaic County