Learn about the process and procedure involved in a NJ Guardianship From A – Z
New Jersey laws and court rules govern a guardianship proceeding. The alleged incapacitated person is entitled to legal representation throughout the process including any hearing, and the court will always appoint a lawyer for the allegedly incapacitated person to confirm that he or she is in fact “incapacitated”. Legal representation is an important safeguard that protects all of us from the potential abuse of others to deprive us of our rights, dignity and freedom.
The purpose of a guardianship hearing is for the court to determine if an alleged incapacitated person is in fact incapacitated and, if so, to what extent this individual requires assistance. If a determination is made that the person is indeed incapacitated, the court decides if the person seeking the role of guardian is and will be a responsible guardian.
To qualify a guardian can be any competent adult — a spouse, an adult child, another family member, a friend, a neighbor or a professional guardian (a professional guardian is an unrelated person who has received special training).
Even before a guardianship proceeding is ever filed, a competent individual may nominate a proposed guardian through a durable power of attorney in case he or she ever needs a guardian.
Sometimes a guardian does not have to be a person at all — it can be a representative of a non-profit agency or a public or private corporation. If the court finds a person is incapacitated and a suitable guardian can’t be found, courts in many states, including New Jersey, can appoint a “public guardian” through a publicly financed agency that serves this purpose.
In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the person’s life — for example, a spouse, adult child or close family relation — people who are both aware of and sensitive to the person’s needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.
Let’s Get Into a Detailed Discussion About New Jersey Guardianship Procedures
COMMENCING AN ACTION FOR GUARDIANSHIP
A guardianship proceeding is brought in the Superior Court of New Jersey, Chancery Division, Probate Part in the county in which the alleged incapacitated person is domiciled/residing and is initiated by the filing of a complaint by a person known as a Plaintiff/Petitioner seeking to have a Guardian appointed. Generally, a lawyer files a guardianship petition on behalf of the proposed guardian, but not always.
The Necessity of Filing a Complaint
The guardianship complaint must allege that the person (called the respondent) is unfit and unable to safely govern himself and to manage his or her affairs. The detailed contents required for the complaint document are set for in Court Rules and must be strictly followed.
The Necessity of Itemization of Estate Assets and the Value(s) of Property
The court rules also require that the complaint list the type, location and fair market value of the following real and personal property owned by the person:
a. All real estate in which the person has or may have a present or future interest, completely describing the real estate, and providing its assessed valuation, and
b. All the personal property he or she owns or may become entitled to, including the total or annual amount of any compensation, pension, insurance or income that may be payable to the alleged incapacitated person.
If a plaintiff cannot obtain this information, the complaint must disclose this and explain the reasons why the information cannot be obtained.
An affidavit of assets is often submitted to the court for the court to establish the Guardian’s bond. This bond is intended to protect the Estate from a dishonest or delinquent guardian. Typically, the bond is posted in an amount enough to cover the value of the assets that the Guardian can either sell and liquidate or over which he has control. Sometimes, posting a bond can be waived.
Necessity of Professional Affidavits as to Incapacity
New Jersey court rules require that a complaint for guardianship be accompanied by the affidavits of two reputable physicians or one physician and one licensed practicing psychologist, each of whom set forth detailed information about the person, the details of their examination of the individual and their professional medical conclusion as to competency.
THE GUARDIANSHIP HEARING BEFORE THE SUPERIOR COURT
If the court is satisfied with the sufficiency of the complaint, supporting information and professional affidavits of the physicians, it will sign an Order to Show Cause fixing a hearing date. In the Order setting the date for the hearing, the court will appoint counsel for the alleged incapacitated person. At this point the court appointed counsel becomes the primary actor in the guardianship (see below).
The Court appointed counsel is charged with the following:
- To personally (meaning in person not by phone or video conference) interview the alleged incapacitated person;
- To question individuals having knowledge of the alleged incapacitated persons’ present circumstances, his or her physical and mental state of mind and his or her property.
- To make recommendation(s) to the court on the issue of incapacity favorable or unfavorable;
- To make recommendations concerning the suitability of less restrictive alternatives than full guardianship such as a conservatorship or a limited guardianship the court appointed attorney will also identify those areas of decision-making that the alleged incapacitated person may be capable of exercising;
- To offer support or refuse a plan of care for the incapacitated person to be thereafter filed with the court for adoption;
- Whether the alleged incapacitated person has expressed preferences concerning their personal lifestyle, preferred guardian and the protection of their financial interests;
- Whether good cause exists for the court to order that any power of attorney, health care directive, or revocable trust created by the alleged incapacitated person be revoked or the authority of the person or persons acting there under be modified to restricted.
- Evaluate and recommend (or not recommend) the proposed Guardian and interview him or her to determine if she/he understands the duties and responsibilities of a Guardian.
There is one point that few people know about and that is the alleged incapacitated person has the right to hire his or her own counsel. A person may disagree with the need to have a guardian appointed and will want to fight it. If they do, counsel must notify the court and the court appointed counsel at least five days prior to the scheduled hearing which will convert the case to a contested guardianship (see my page on How to Fight Against and Stop a Guardianship.
The requirement of addressing less restrictive alternatives to a full guardianship has been an increasing preference by the courts, whenever possible. This is in accord with a national trend to compel those vested with surrogate decision-making to explore and implement less restrictive alternatives to file guardianship. This trend is further reflected in recent revisions to the New Jersey guardianship statutes.
Less Restrictive Alternatives to Full Guardianship:
The Effective Use of a Temporary Guardianship For Minor Children and Adults
The Appointment of a Temporary Guardian of the Person and/or Property under New Jersey law now provides that a party may request the appointment of a temporary Guardian of the person, estate, or both, with notice to the alleged incapacitated person or his or her attorney, or the attorney appointed for the alleged incapacitated person by the court.
Conduct of a Guardianship Hearing in New Jersey Superior Court
Generally, a guardianship hearing is handled by a judge without a trial. This means a judge hears the evidence and decides without a jury. Testimony of the physician or psychologist may be taken in person or by telephone but can be waived by the judge. In close cases or disputed cases, a professional is required to testify by telephone unless there are complicated medical issues. In lieu of testimony, the court may rely upon the affidavits of the physicians or physician and psychologist, if recommended by the court appointed counsel and, where applicable, the guardian ad litem.
Limited Guardianships: You Have Choices
In guardianship actions, the approach generally recommended is for a younger disabled person is to file for a limited guardianship, now specifically defined and permitted by statute. N.J.S. 3B:12-24.1(a) is an entirely new section of the guardianship statutes, entitled “A Determination by the Court of Need for Guardianship Services, Specific Services.” This section of the court rules provide for a General Guardian, a Limited Guardian, and a Temporary Guardian. If the court concludes that an individual is incapacitated and is without capacity to govern himself or manage his affairs, the court may appoint a General Guardian who will exercise all rights and powers of the incapacitated person. However, if the court finds that an individual is incapacitated and lacks the capacity to do some, but not all the tasks necessary to care for himself or herself, the court may appoint a Limited Guardian of the person, of the estate, or of both. A court, when establishing a Limited Guardianship, makes specific findings regarding the individual’s capacity, such as residential, educational, medical, legal, vocational, and financial decision making.
The judiciary is transitioning towards an enhanced respect to the rights of self-determination of the alleged incapacitated person wherever appropriate. The court has the power to limit the powers conferred on a Guardian and those limitations must be set forth in the certificates of letters guardianship. For example, in “In re Conroy”, the Supreme Court stated that a ward may be sufficiently competent to make a decision regarding a particular medical treatment. In “In re Roche”, 296 N.J. Super, 583 (Ch. Div. 1996), the court noted that an incapacitated person’s right to self-determination must be preserved as much as possible. In “In re Jacobs”, the court gave a lengthy discussion of an alleged incapacitated person’s right to control certain aspects of his or her life, such as medical treatment and where he or she would like to live.
Authority of a New Jersey Guardian to Transfer Assets and Income to a Spouse for Medicaid Planning
In a 2006 revision to the guardianship statutes, a court now has authority to engage in planning and utilizing public assistance programs, including Medicaid, consistent with current Medicaid law. The Court held that when a Medicaid spend-down plan does not diminish an incompetent person’s care, involves transfers to the natural persons of his life, and does not contravene any expressed prior intent or interest, then the plan clearly provides for the best interests of the incompetent person.
Authority of a New Jersey Guardian to Do Estate Tax Planning for an Incapacitated Person
In the event an incapacitated person has substantial assets and has done little or no estate tax planning, the guardianship proceeding can be utilized to diminish the anticipated estate tax burden. The court has all the powers over the incapacitated person’s estate and affairs that the incapacitated person could exercise, if present and not under a disability, except the power to make a Will, and the court may confer these powers upon a Guardian of the estate.
If you are searching for a special attorney, someone who is experienced, likeable as a person and professional, call Mr. Niemann. I felt good about my choice.
—Frank Mollo, Manchester, NJ
Contact Fredrick P. Niemann, Esq. on any questions concerning guardianship in New Jersey. Call toll free (855) 376-5291 or email him at firstname.lastname@example.org.
His team has filed many hundreds of guardianship applications throughout New Jersey.
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