michael s. simone, esq.
As a caregiver, you can’t help but worry about the safety and well-being of the people you love. When they age, get sick, and can’t care for themselves, you want to ensure they’re taken care of no matter what.
Guardianship allows you to do just that.
Guardianship is the legal process of appointing a guardian to make personal and financial decisions for a person determined to be incapacitated. It’s a last-resort option when the individual hasn’t made plans for their own incapacity and should be used wisely under the guidance of a Cinnaminson guardianship attorney.
If you have an Elderly relative or loved one falling behind in their health, finances, and other aspects of daily living, you may need to petition for guardianship. Guardianship serves to protect adults who are at risk of exploitation.
Think your loved one needs guardianship? This is a big decision that can affect many people—it’s helpful to know how to file and when. An elder law attorney can assist with this process.
Guardianship is necessary when an adult is incapacitated or unable to care for themselves. Suppose the alleged incapacitated person has not created an estate plan with a power of attorney document. In that case, family members may consider filing for guardianship.
These actions may also be filed if it is believed that the adult in question is being taken advantage of by a caregiver. In this case, to protect their financial well-being, the guardian must investigate whether the protected person has changed their will, added names to their bank accounts, or transferred assets.
In either case, guardianship may be necessary to protect the individual from further harm.
Along with the Complaint for Guardianship, the court will require itemization of the real and personal property owned by the alleged incapacitated person.
You will need to submit a Certification of Assets form that itemizes assets, including:
Your Complaint for Guardianship must also include affidavits from two doctors or one doctor and one licensed psychologist. These affidavits should detail the alleged incapacitated person, their examination, and the doctor’s professional opinion about competency.
In New Jersey, as in most states, parents automatically assume the role of a legal guardian, making most of their child’s financial, medical, educational, and personal decisions. Upon age 18, that guardianship ends, and the child is emancipated unless a court of law has ruled otherwise.
Regarding children with special needs, parents must consider whether their child is capable of self-governance and if obtaining court-appointed guardianship would be in their best interest.
To qualify as a guardian, the courts will prefer an individual who has played a significant role in the person’s life (i.e., the child’s parents).
To obtain guardianship in New Jersey, you must apply for Letters of Guardianship. All guardianship appointments require a judgment by a Superior Court Judge.
This can be done in two ways.
The application must be supported by the certifications of either 1) two physicians or 2) one physician and one psychologist. Only after the applicant qualifies before the County Surrogate can they act as a guardian.
The proposed guardian must sign certain documents reflecting acceptance of the guardianship and pay the required fees. Entry of the judgment by the Superior Court Judge establishes the guardianship. Qualification may occur immediately following the guardianship hearing and must happen as soon as possible.
The entire process takes approximately eight weeks.
The guardian assists the protected person in navigating the world around them while maintaining as much dignity and self-reliance as possible. The desires of the protected person are to be given high consideration.
Suppose the protected person has an estate (income from earnings, pension, property, securities, etc.). In that case, a guardian is likely appointed to control the assets and manage the estate. If a protected person has no estate, it is neither appropriate nor advisable to seek a guardian of the estate.
The monetary value of all assets of a protected person’s estate should be listed as of the guardian’s appointment date.
The list should include but is not limited to the following:
The responsibilities of the guardian are varied depending on the type of guardianship. Guardians are to ensure that the protected person receives appropriate medical care and education and that their overall health and welfare are provided and protected.
The guardian must:
It’s not easy appointing a guardian or conservator. It is a monumental decision that strips people of their fundamental right to self-governance.
But guardianship isn’t the only option.
With some preparation, you can pre-select the individuals you want to step in and care for your affairs if you become incapacitated.
A power of attorney is the grant of legal rights and powers by a person (called the “principal”) to another (the “agent” or “attorney-in-fact”). The agent stands in the shoes of the principal and acts for them on financial, business, health care decisions, and/or personal matters.
In most cases, even when the power of attorney is immediately effective, the principal doesn’t intend to use it unless and until they become incapacitated. A power of attorney is the most effective and least costly alternative to a court-sanctioned guardianship.
If you plan to draft a power of attorney document, consider including provisions to minimize the chances of exploitation, such as:
You may also consider drafting a contract, signed by the attorney-in-fact, that covers accountings, payment for services, documentation, and other precautions to limit the possibility of abuse.
New Jersey law does not provide for compensation to a guardian of the person only. Statutory commissions are available if they are also appointed as guardians of the estate. If the protected person has assets and/or income, the guardian may apply to the court for compensation for services beyond the scope of typical guardianship duties.
This request should be addressed in the initial judgment or via subsequent application to the court. Unless so granted by the court, the guardian is not entitled to take such payment from the guardianship estate. The New Jersey Statutes set forth specific commissions that may be taken by a guardian of the estate based upon the estate’s principal and the estate’s income.
Yes, the guardian may hire an attorney and have the fees for that attorney paid by the protected person’s estate as long as the court determines that the fees are reasonable and necessary.
Upon the death of the protected person, the guardianship ends. Before such death, the Superior Court Judge determines to end the guardianship because of the protected person’s recovery from their incapacitated person, the guardian’s death, or because there has been a request for a new guardian.
The guardian should notify all service providers, such as water, gas, and electric utilities, telephone, television, and internet services. The notices should be sent as soon as possible after the guardianship appointment.
This is to ensure that the guardian receives the information necessary to promptly pay the financial obligations of the protected person’s estate. Notice should also be provided to the United States Postal Service to ensure that the guardian becomes aware of all debts the protected party owes.
Applying for guardianship or designating powers of attorney in your estate plan takes a lot of work. Although protecting your child or adult loved one is important to you, complying with the numerous legal requirements can feel like more than you bargained for.
Contact the New Jersey lawyers at The Simone Law Firm if you need to formally establish guardianship of your children as part of your estate plan or attempt to do so for a loved one. Our law firm can assist with many areas of estate planning, including elder law, Medicaid planning, and estate administration. Schedule your consultation today.
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