Sometimes people are incapable of caring for themselves and require an agent to act on their behalf. When someone is found by a New Jersey court to be incapable of managing their own affairs, guardianship of an incapacitated adult may be granted.
Unlike a power of attorney, where an individual can consent to granting another person broad legal powers on their behalf, under guardianship the individual becomes the ward of his/her guardian, and effectively loses the legal right to make decisions about his/her own life. Because it effectively eliminates the ward’s right to self-determination, a guardianship is considered a solution of last resort, and can only be granted by the New Jersey Superior Court.
One may act as either a guardian of the person, the guardian of the person’s property, or both. The guardian of the person makes decisions about medical treatment, housing arrangements, etc. A guardian of property makes decisions about the handling of the ward’s financial affairs. Sometimes the court will grant property guardianship to a different individual than the one who handles personal guardianship.
There are two forms of guardianship in the state of New Jersey: limited guardianship or general (“plenary”) guardianship. Limited Guardianship is granted when some but not all decisions about matters involving residency, education, medical treatment, legal assistance, or financial management must be made for an individual. General Guardianship may be granted for individuals who are determined to be incapable of making any decisions on his/her own.
Guardianship can be granted to a family member or other interested party, or to the Bureau of Guardianship Services (BGS), under the New Jersey Department of Human Services. However, the BGS has an enormous backlog of cases, with potentially years of waiting time, not including the 8-12 months it takes to complete the guardianship process, and does not pursue financial guardianship. If other guardianship is sought these can only be obtained by hiring an attorney and petitioning for an appointment.
A court hearing is required, and an assessment must be made by a New Jersey licensed psychologist, psychiatrist, or medical doctor. The judge may wish to speak with the incapacitated person to determine the full extent of the disability, as well as to assess the person’s ability to communicate and make decisions. The court must then determine the type of guardianship that is appropriate, and may set forth the types of decisions that the guardian can make on the ward’s behalf.
The guardian is responsible for nearly every aspect of the ward’s life, including where to live, daily activities, doctor visits, insurance and Medicare paperwork, long-term care arrangements, and daily care. Professional guardians appointed by the court may be compensated for these services, but family members generally are not. However, a limited guardianship stipend, dependent on state allocations from year to year, can be requested if the demands of guardianship are such that they form a significant drain on the caregiver’s time, or prevent the caregiver from seeking other employment. Expenses related to the ward’s care may be reimbursed, and must be documented and reported to the court regularly.
A guardianship can be contested if there is evidence of theft, fraud or intentional mismanagement of the ward’s finances, or if there are questions about the quality and appropriateness of the ward’s care. A judge may also decide that the guardian is incapable of doing the job competently. Any change in guardianship, whether it be a judge removing a guardian, naming an additional co-guardian, or replacing a guardian, can only be accomplished through the court.
Establishing guardianship for an incapacitated adult can be a complicated process. If you have any questions or concerns about an incapacitated adult in your care, please call our office at 856-227-7888 or contact us at [email protected] to set up a free consultation.