What Role Does a Guardian Fill?
In New Jersey, a guardian is a person or agency appointed by the courts to act on another person’s behalf. Guardianship is a significant legal undertaking that essentially dissolves a person’s rights to make decisions on their own behalf.
When applied properly, it is a vital source of protection, particularly for minors whose biological parents are unavailable or unable to care for them. It is also used to support adults with certain cognitive disabilities who cannot make complex life and medical decisions for themselves.
This discussion explains who may benefit from a guardian, how they work, and the first step to start the guardianship process in New Jersey.
Guardianship and Minor Children
As noted above, a guardianship is a legal arrangement whereby one person makes important life decisions for another person. There are two primary circumstances in which a guardianship is used. One is when a child’s legal parents are incapable of managing their day-to-day needs for whatever reason.
Guardianships are generally granted under one of the following conditions:
- The legal parents voluntarily consent to the guardianship.
- The legal parents have abandoned the child.
- A judge finds it would be detrimental for the legal parents to have custody of the child.
It is not easy to get a guardianship when one or both parents object. In most cases, you would have to prove the parents are unfit because of domestic violence, physical abuse, or substance abuse issues, for example.
What Are a Guardian’s Responsibilities When It Comes to a Child?
A guardian fulfills the role of a parent, providing shelter, clothing, food, education, and medical care for the children they are appointed to care for.
Technically, the parents are still financially responsible for their children, even if they are not in their custody, unless their rights are terminated altogether. Yet, many guardians still choose to apply for government assistance on the child’s behalf. Parents who are out of the picture may not be reliable and stick to their financial obligations. Social Security and other government aid funds are to be used only as intended, for the child’s needs only.
When Does This Type of Guardianship End?
Guardianships are terminated based on the timeframe listed in the agreement, or when a specific event occurs. The majority of guardianships are open ended and terminate only when:
- The child turns 18, age of majority in New Jersey
- The guardian resigns
- The child or the guardian passes away
- A judge determines a guardianship is not in the child’s best interests or no longer needed
What Is a Guardian ad Litem?
Guardian ad litems (GALs) are also appointed by the court, but their responsibilities differ from those described above. GALs are not responsible for taking care of the child on a daily basis. Instead, their job is to act as the child’s voice in custody proceedings. A GAL is an objective third-party person: an attorney, social worker, therapist, or other professional.
The GAL interviews the child and parents and reviews all the documentation related to the family law matter, and then submits a written report to the court with their findings and recommendations regarding custody and divorce. Although GALs are not widely used in New Jersey custody disputes, they are more common in high-conflict divorces.
What Happens When the Child Reaches the Age of Majority?
The age of majority is the age when parents can no longer legally make decisions for their children. In New Jersey and most states, that happens at age 18. Guardianships for children with no outstanding issues that prevent them from making decisions are removed once they reach 18. At that point, the parents and/or guardian has no legal obligation to provide for the child’s care.
Why Would an Adult Need a Guardian?
Although most people who turn 18 are eager and ready to take on adulthood, others may not have the skills or understanding to make adult decisions.
Some young adults have ongoing or permanent intellectual or cognitive disabilities that impair their ability to make sound and informed choices about their own health and well-being. They may not grasp the consequences of such decisions or have the ability to give informed consent. Guardianship is an option for these individuals and their families.
Making the Transition to the Age of Majority with a Special Needs Child
As a child with special needs approaches the age of 18, parents must assess their needs and decide if a guardianship is necessary. Not every individual with a disability needs a guardian. If the child is capable of making rational and responsible decisions, they may not require a guardian at all.
In New Jersey, the Departments of Education, Special Education, and Human Services recommend that parents with a disabled child start preparing for their transition to adulthood at least three years before the child turns 18.
There is No One-Size-Fits-All Solution for Young Adults with Special Needs
A guardianship is arguably the most extreme legal scenario because it requires a judicial review to establish, and it effectively partially or generally limits a person’s rights to make decisions about their own life.
But what about a person who is capable of making some decisions, but not all? In some cases, a limited guardianship is an alternative to a general guardianship to give young adults some autonomy while still ensuring their needs are met.
Technically, anyone over 18 is eligible to be a guardian, though it is usually one or both parents who takes that role. Most family law attorneys recommend naming a successor guardian to act on their behalf in the event of their passing.
Parents who want a successor guardian should discuss it with that person so that they are fully aware of their potential responsibilities. It is essential they nominate their successor guardian and standby guardian in their written will.
Having these provisions in place will give everyone the peace of mind knowing a disabled loved one has a trustworthy and responsible advocate for the duration of their life.
New Jersey Guardianship Requirements
As explained above, guardianship is often considered the last resort compared with other legal options. Anyone considering this route should be aware of key requirements regarding guardianship in New Jersey.
New Jersey guardianship law declares that:
- Parents can remain involved in medical decisions and be requested to provide consent as next of kin in the event of an emergency.
- Every application for guardianship must include current assessments from a licensed physician, psychiatrist, or psychologist.
- Guardians can be parents or other family members, or approved agencies including the Bureau of Guardianship Services.
- Co-guardians are an option. However, the Bureau of Guardianship Services can never act as a co-guardian.
Alternatives to General Guardianship for Adults with Special Needs
Any parent considering a guardianship for a child or loved one with an intellectual disability should thoroughly research all the options available to establish an arrangement that meets their needs. Here are the most common alternatives to a guardianship.
- Supported decision-making. Encourages and supports the individual’s ability to make decisions with the assistance of one or more persons who are chosen and appointed by the young adult in question. These individuals can be family members, friends, or professional advocates.
- Power of attorney (POA). Empowers the young adult to appoint an individual to make legal, financial, and even medical decisions on their behalf. A POA has several benefits. They are cost-effective, easy to create, and revocable at any time.
- Limited guardianship. A limited guardianship, or plenary New Jersey guardianship, is recommended for individuals with the capacity to make some, but not all, life decisions. Limited guardianships generally cover financial, medical, legal, residential, and educational matters.
As a parent, you want to know your adult child has all the tools and resources they need to survive, and thrive, at every age and stage of life. If they have a cognitive disability, it is imperative to take the proper steps to ensure someone is appointed to make decisions for their physical and emotional well-being.
As your child approaches the age of majority, 18 in New Jersey, it is a good time to meet with a family law attorney and learn about your options. Your child deserves personalized legal solutions based on their current abilities and future goals. Whether that is a POA, a general guardianship, or something in between, the right plan empowers your loved one while protecting their rights and interests at the same time.
Somerville Family Law Lawyers at Lyons & Associates, P.C. Help Clients Navigate Guardianship Matters
If you are considering establishing a guardianship for your child or have questions about estate planning options to ensure a secure financial future for your loved ones, the Somerville family law lawyers at Lyons & Associates, P.C. can help. We take the time to truly understand your family’s needs and tailor your estate plan to protect and support those you love. To learn more or to schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville and Morristown, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.