Understanding the Process and Procedures Involved
New Jersey has extensive statutes, court rules 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 et. seq.). 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.
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 him or her at risk of injury, death, or financial exploitation.
A person can’t be declared incapacitated 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 incapacitated 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.
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 email@example.com. He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.
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
The law does not allow just anyone to be a guardian for reasons I personally believe are outdated. Only a select class of persons can apply to be a guardian, mostly family members and those persons known as “next of kin”. Under limited circumstances, sometimes non-family members can be appointed as guardian of the person or property of another, with court approval.
Interested in serving as a guardian but not sure you will qualify? Then reach out to Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or e-mail him at firstname.lastname@example.org. He welcomes your calls and inquiries.
You Can Avoid a Guardianship With a Power of Attorney
Guardianships are often filed because a presently incapacitated individual failed to sign “substitute decision-making documents” called a Comprehensive Durable Power of Attorney, Living Trust and/or a Durable Medical Directive for health care. Many guardianships can be avoided, or limited in scope, with 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).
Understanding the Process and Procedures Involved in a New Jersey Guardianship
Who Has Legal Standing to File for Guardianship
Guardianships are intended to care for and protect individuals who cannot take care of themselves. It is not designed to imprison or conform 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 a guardianship. Please make a note of this point a “mere failure of memory, physical decline and a declining mind/sensory powers/thought process alone is NOT sufficient medical evidence of mental unsoundness justifying a finding of incapacity and the appointment of a guardian.
I like to use a catch all phrase “presence of mind” when explaining to clients the law of incapacity and guardianship. In other words, in all circumstances in which a guardianship is 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 the decision(s) they are about to make or the potential consequences (positive or negative) of that decision.
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 the compelling case on the law on competency. This case states:
“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 that a person is incapacitated.
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. These decisions include selecting their place of residence, living arrangements, home care, social interactions, visitation with others, medical care, and other day-to-day activities, etc.
A “guardianship of the property” on the other hand gives the guardian the investing power to make decisions regarding a person’s finances including investment, banking, social security, credit cards, bills, borrowing or loaning money and whether to sell, trade, or invest in real estate and stocks. It includes authority to make decisions over all of a person’s finances and 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 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.
A 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 personally provide day-to-day care to the person.
Recently, changes in New Jersey’s guardianship laws 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 can make 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 that may be most appropriate for a 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.
I thank you from the bottom of my heart for successfully representing me and getting the court to award guardianship of my mother to me. You have done excellent research, follow up and demonstrated professional skills as an attorney in this matter. I applaud you for your patience, understanding, guidance and compassion not only to my mother but to me and my sister. You have been prompt in responding to my questions by emails in a timely manner. Thank you again.
Baktha Kumar – Union, 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 email@example.com. He welcomes your calls and you will find him sensitive, experienced and easy to talk to.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, A Freehold Township, Monmouth County New Jersey Guardianship Attorney