Guardianships in New Jersey

WHAT IS GUARDIANSHIP?

In New Jersey, if a person who is over the age of 18 is no longer able to make decisions regarding his or her health, welfare and finances, another adult may apply to become his or her guardian. An individual may be incapacitated due to Alzheimer's, mental illness, developmental disabilities, a traumatic head injury or some other reason.

The guardian would have the legal ability to make healthcare, financial and/or other decisions on behalf of and in the best interest of the incapacitated person. A guardian is usually a relative, but can also be a friend or in some cases, the public guardian may be appointed. The guardian will provide for the ward's needs from the ward's estate.

HOW IS A GUARDIANSHIP OBTAINED?

A petition for guardianship is brought in the Superior Court. The party making the application for guardianship must have two physicians (or one physician and one psychologist) examine the allegedly incapacitated person. A verified complaint is then filed in the Superior Court within 30 days of the doctors' examinations.

The complaint must state details about the person, their family members, the plaintiff's relationship to the person (plaintiff is the person filing the complaint), where the individual lives, the person's physical and mental condition and any estate planning or healthcare documents that the individual has and must allege that the individual is unfit and unable to govern his or her own affairs. The complaint must be accompanied by an affidavit from the plaintiff detailing the alleged incapacitated person's assets and affidavits of the two physicians (or physician and psychologist) describing the physical/mental condition of the allegedly incapacitated person and each doctor's opinion as to whether he or she is unfit and unable to govern him/herself and manage his/her affairs and the basis of the doctors' opinions.

The verified complaint and supporting documents must be filed with a proposed Order for Hearing. If the court is satisfied with the sufficiency of the complaint and affidavits, the judge will sign the Order for Hearing, which will provide for a hearing date and the appointment of an attorney for the allegedly incapacitated person. The complaint and order must be served upon the allegedly incapacitated person, his or her court-appointed attorney and all other interested parties and proof of service must be filed with the court.

The court-appointed attorney will conduct an investigation, including interviews with the allegedly incapacitated person, the proposed guardian and all other interested parties and will examine medical and financial records of the allegedly incapacitated person. This is done to insure that no one is attempting to take advantage of or mistreat the allegedly incapacitated person. The court-appointed attorney will prepare a report of his or her findings, which will include recommendations on the person's capacity and that individual's wishes.

If there is no objection to the guardianship and/or the appointment of the proposed guardian, then the hearing may be dispensed with and a judgment entered by the court without the need for anyone to appear before the judge and give testimony. In the case of objections, a trial may be conducted.

If a judgment is entered declaring the person incapacitated and appointing a guardian, the guardian must report to the surrogate's office to obtain letters of guardianship. The guardian will have to file an annual report detailing the incapacitated person's health, welfare and finances. In some cases, the guardian will have to post a bond. This is generally done in the case of non-family member guardians and/or extensive estates. This is often not required for smaller estates where the guardian is an immediate family member.

The process typically takes several months for an uncontested guardianship. Since it can be a complicated procedure, it is generally recommended that an attorney be hired by the petitioner or by an interested party contesting the guardianship.

Please refer to the website below for more information on guardianships in New Jersey:

www.state.nj.us/humanservices/ddd/services/guardianship

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