When an illness, accident, or advanced age causes an individual to become incapacitated or disabled and they are no longer able to take care of themselves, a family member or a loved one may be appointed as a legal guardian. In the state of New Jersey, a legal guardian is someone who is appointed by the court to care for the incapacitated person to make important medical, financial, and life care decisions. A legal guardian must ensure that they have the support, services, and resources necessary to meet the loved one’s specific needs.
Guardianship is a significant responsibility and should not be taken lightly. Whether the loved one is an aging parent who is suffering from advanced dementia or a child who has a severe disability, a skilled guardianship lawyer can help an individual navigate the complex process of applying for guardianship, explain the responsibilities, and ensure that the loved one is cared for and that their best interests are protected.
What are the Different Types of Guardianship?
In New Jersey, if the court determines that an individual is no longer able to manage their affairs, the court may appoint a general guardian. The two types of guardianships are listed below.
Guardian of the Person
They are responsible for making personal and medical decisions for the incapacitated person. This involves no financial obligation, with the exception of signing applications for benefits or other entitlements. There are two types of guardianship of the person, including:
- General Guardianship: Also known as plenary guardianship, this is an option for people who are no longer able to express themselves or make decisions on their own behalf. This type of guardianship would be appropriate for an adult child who has a severe developmental disability and is unable to make decisions or express an opinion.
- Limited Guardianship: This allows the individual to make decisions about where the person will live and go to school, as well as important decisions about medical care, financial issues, and employment. This may be a good option for adult children who have the mental capacity to make some decisions, but not all.
Guardian of the Property
They are in charge of making financial decisions for the incapacitated person, including decisions about expenditures, income, assets, property, and insurance. As part of the guardianship process, the court will post a surety bond to protect the incapacitated person from theft, malfeasance, or being taken advantage of by the guardian. The bond must be issued by a licensed New Jersey insurance company and approved by the court.
Before volunteering to become a guardian, it is highly recommended that the person determines whether they are bondable. An experienced guardianship lawyer can assist their client with that process.
Since a guardian of property is responsible for making important decisions related to the ward’s property, they must provide regular updates and reports to the ward and the court. The following reporting requirements ensures that the guardian is held accountable for the decisions they make on behalf of the ward:
- Itemized inventory of the ward’s property, assets, and income.
- Detailed reports that show how and when funds are invested so that they can be used to support the ward.
- Provide financial data to the County Surrogate’s Office, showing all income and expenses paid on behalf of the ward.
- Apply for court approval for significant financial transactions, including the sale of a house or payment of extraordinary expenses.
In some cases, the guardian may be required to provide proof that they have made proper arrangements for the ward’s care, that they are living in a clean and safe home, and that they receive the health care, treatment, education, and training programs necessary.
How Do I Become a Guardian?
When a family member or loved one is no longer able to manage their own affairs, the process of becoming a legal guardian can be stressful, overwhelming, and confusing. Recognizing that a loved one’s physical or mental health issues means that they can no longer care for themselves, which can be painful for all parties involved. However, the sooner that a caregiver accepts their loved one’s lost capacity, the sooner they can take the steps to take control of their affairs and ensure that their legal rights are protected.
The first step in establishing guardianship is to designate a power of attorney for the incapacitated person. If this is not possible, it will be necessary to declare the person partly or wholly incapacitated and establish legal guardianship.
The interested party may file a petition to be appointed as a guardian. The petition must include certifications from two physicians regarding the incapacity of the individual. One of the physicians must be a medical doctor. The second physician can be a psychologist. The petitioner must also file a verified complaint and order to show cause (OTSC) with the Surrogate’s Court.
Once the complaint and all supporting documents have been filed, the OTSC is entered. This sets the date for the guardianship hearing before the Superior Court, which is usually within five to six weeks. It also assigns a court-appointed lawyer for the incapacitated person. The petitioner must notify other interested parties who may contest the guardianship or counter-petition if they wish to be appointed the incapacitated person’s guardian instead. Once the guardian is appointed by the court, they are responsible for all duties designated by law. In addition, they will be required to provide annual updates to the court about the status of the incapacitated person.
In most cases, the process of becoming a legal guardian is fairly routine and predictable. However, there are situations wherein family members disagree with who should be appointed guardian or whether an individual should be considered incapacitated. Family members may accuse other family members of financial exploitation or misappropriation, which can cause the process to become contentious, time-consuming, and expensive. When the situation becomes adversarial, an experienced guardianship lawyer will protect the rights of the incapacitated person and ensure that the guardian is carrying out their responsibilities.
What are the Responsibilities of a Guardian?
Once an individual has been appointed as a legal guardian, they have full legal control over the person’s finances and all other matters, with the exception of the power to make a will, file for divorce, or permit a marriage in the absence of court approval.
While a guardian is not responsible for providing financial support via their own funds, they should always act in the ward’s best interests and act with an executed power of attorney for health care and a living will. Ultimately, the guardian is the final decision-maker when important medical, financial, and other important decisions must be made.
What is the Difference Between Legal Guardianship and Conservatorship?
While a guardian makes important decision on behalf of the incapacitated person, including decisions about medical treatment and where they live, a conservator’s responsibilities are limited to managing their financial affairs. For example, a conservator has the power to do the following:
- Make payments for the conservatee’s education, health care, support, and maintenance.
- Pay any outstanding legal debts.
- Collect and manage the conservatee’s assets.
- Collect money that is owed to the conservatee.
- Pay taxes owed by the conservatee.
- Participate in estate planning for the conservatee.
The same person can be appointed to be a guardian and a conservator, and both are court-ordered relationships between the appointed person and the person who is no longer able to make their own sound financial, health-related, or other important decisions.
What is Kinship Legal Guardianship?
There are times when a parent is unable to care for their child, either due to mental illness, a disability, drug addiction, or other unfortunate circumstances. Depending on the situation, the child may be removed from the home and placed with a relative or a close friend. In this situation, a kinship legal guardianship may be established. While removing a child from the home under any circumstances is a traumatic event, a kinship legal guardianship ensures that the child will be cared for by a family member or friend and prevents the child from being placed in foster care.
Who is Eligible for Kinship Legal Guardianship?
In the state of New Jersey, anyone who cares for a child for an extended period of time can apply for kinship legal guardianship, provided they meet the following criteria:
- The child has been under their care for a minimum of 12 months.
- The child’s biological parents are unable to care for the child.
- They are either related to the child or a friend of the family.
- They are in a financial position to be able to care for the child.
- It is in the child’s best interests to remain in their care.
What is the Difference Between Kinship Legal Guardianship and Adoption?
While kinship legal guardianship and adoption both provide the child with stability and provide caregivers with the power to make important decisions, there are key differences between the two. It is important to know the differences.
While kinship legal guardianship is certainly more stable than foster care, it is only effective until the child turns 18 years old or graduates from high school. In addition, it can be reversible at any time. For example, if a child is being cared for by a family member who has been named a kinship legal guardian because the parent developed an illness that made them unable to take care of the child, the court may vacate the guardianship if the parent’s condition improves. If the parents can demonstrate to the court that they are able to care for the child and it is in the child’s best interest to return to the parent, the guardianship will be reversed.
In a kinship legal guardianship, the birth parents may continue to visit the child, and they retain the right to decide whether the child can be adopted. In addition, the birth parents must continue to financially support the child if they are able to do so. If the child has been adopted, however, the birth parents’ rights are severed. The adoptive parents also have the legal right to transfer custody or care of the child to another person in the event that they pass away or become incapacitated. Once a child is officially adopted, they have the right to inherit or receive government benefits from the birth parents to the adoptive parents.
How can a Guardianship Lawyer Help Me?
The process of becoming a legal guardian or obtaining legal guardianship for a loved one can be difficult, particularly when emotions are running high and decisions need to be made about the loved one’s health care, finances, and living situation. A skilled guardianship lawyer will thoroughly explain the process of becoming a guardian and the responsibilities involved. The following are examples of how a guardianship lawyer can help:
- Assess the specific issues related to the guardianship and the individual client’s needs.
- Help expedite the appointment process.
- Provide legal guidance regarding Medicaid and tax planning.
- Assist with the evaluation of physicians and psychiatrists.
- Conflict resolution in cases where a guardianship is contested.
- When necessary, provide assistance with preparing and filing tax returns, obtaining bonds, and effectuation of service documents.
- Identify a guardian if the family is unable to.
- Attend court to answer questions.
New Jersey Guardianship Lawyers at Lyons & Associates, P.C. Assist Clients With the Process of Becoming a Legal Guardian
If you or someone you love has become incapacitated, either by an injury, a severe disability, or mental or physical decline associated with age, the experienced and compassionate New Jersey guardianship lawyers at Lyons & Associates, P.C. can help you. We will thoroughly explain every step of the guardianship process, including filing the necessary petitions, attending court hearings, and providing regular updates to the court about the loved one’s status. Becoming a legal guardian is a significant responsibility, and we will walk you through every phase of the process. To schedule a confidential consultation, call us today at 908-575-9777 or contact us online. Our offices are conveniently located in Somerville and Morristown, New Jersey, and we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.