Your Guide to the Different Types of Guardianship in New Jersey

Explore the various types of guardianship, their legal implications, and how the Law Offices of Wenarsky and Goldstein, LLC can guide you through the guardianship process.

Understanding the Types of Guardianship

Navigating the complexities of guardianship in New Jersey is a crucial aspect of ensuring the well-being and protection of individuals who are unable to make decisions for themselves. Whether it’s due to mental illness, developmental disabilities, physical incapacitation, or the plight of orphaned or abandoned children, the need for responsible decision-making regarding personal finances, medical care, and financial assets is paramount.

Guardianship grants a person or entity the legal authority and responsibility to act on behalf of those who cannot do so themselves. In the realm of estate planning, establishing a legal guardian is vital for safeguarding the best interests of minors, incapacitated adults, or individuals with disabilities. However, navigating the intricacies of guardianship law can be intricate and challenging, necessitating professional guidance.

The Law Offices of Wenarsky & Goldstein, LLC, offers experienced and compassionate legal counsel in matters concerning appointed guardianship. From establishing, modifying, or terminating guardianships – to defending guardians’ rights, our firm is dedicated to representing clients every step of the way. In this article, we delve into the various types of guardianship in New Jersey, offering insights and guidance for individuals and families facing these important decisions.

What Is Guardianship?

Guardianship is a legal arrangement designed to care for individuals who are unable to care for themselves due to various incapacitating factors. This is done by appointing a guardian (including a successor guardian and limited guardian) to act and make decisions on behalf of the ward. Wards include minors and individuals unable to act due to age, disability, illness, or injury.

A guardian of the person makes decisions on their behalf about their personal care, medical treatment, well-being, education, etc. They may also handle property, financial decisions, or legal matters.

  • Incapacity Determination:
    • In New Jersey, the Superior Court holds the authority to assign guardians to adults needing assistance. The court first assesses whether an individual is incapacitated, designating them as an alleged incapacitated person (AIP) until a decision is reached.
    • Examples of incapacitation include mental illness, physical disability, chronic drug or alcohol use, and developmental disabilities.
  • Reasons for Guardianship:
    • A court may deem guardianship necessary if the individual cannot make critical decisions regarding personal and financial affairs.
    • Various conditions such as dementia, intellectual disability, mental illness, head injury, and substance use disorder, may impair decision-making abilities. However, having these conditions alone does not automatically necessitate guardianship.
    • Lack of alternative arrangements, like power of attorney or healthcare directives, may also warrant guardianship.
    • The intervention aims to protect the person or their resources from significant harm.

Types of Guardianships

Understanding the intricacies of guardianship is crucial for ensuring the well-being and protection of individuals unable to care for themselves. With proper assessment and legal guidance, guardianship can provide essential support and protection for vulnerable individuals in New Jersey. Guardianships can be categorized in many ways depending on the age group, permanency, and the scope of protection. Let’s look at the various types of guardianship in the section below:

Guardianship of the Person: This form of guardianship is applicable when the ward requires care and assistance but does not possess assets necessitating financial management.

Guardianship of the Estate: In this scenario, the guardian’s sole responsibility lies in managing the ward’s financial affairs. This arrangement is appropriate when there is a need to oversee the individual’s assets without involvement in their personal care.

Guardianship of the Person and Estate: In this scenario, the appointed guardian takes on the dual responsibility of managing the individual’s healthcare needs and financial affairs. This arrangement is suitable when the ward requires care and assistance and also possesses assets that require management.

Guardianship for Minors

It involves an individual or an organization making decisions and acting on behalf of a person under 18 when suitable parents or legal guardians are absent. This form of guardianship may be explored in circumstances where:

  • The child’s parents are deceased, missing, or imprisoned.
  • The parents display abusive, neglectful, or unsuitable behaviors.
  • The parents are unable or unwilling to provide care.
  • A child has special needs requiring focused care.
  • A child inherits significant money or property, and the child’s estate needs management or protection.

This guardianship covers personal care, healthcare, education, and finances. Typically temporary, it ends when the child turns 18 unless the child has a disability preventing them from making critical decisions.

Adult Guardianship

Adult guardianship is established for various reasons, including situations where

  • An adult experiences a physical or mental impairment affecting their reasoning, understanding, or communication abilities.
  • Cognitive or developmental disabilities hinder judgment, memory, or comprehension.
  • A chronic or terminal illness impacts an adult’s mental or physical functions.
  • Substance abuse or addiction undermines an adult’s self-control or decision-making.

Adult guardianship covers aspects of an adult’s life like personal care, health, living arrangements, finances, property, or legal matters. Usually, it is permanent and lasts until the adult’s death or the court’s termination of the guardianship.

Temporary v. Permanent Guardianship

Temporary guardianship is a short-term arrangement that enables a temporary guardian to make decisions for someone temporarily unable to do so due to emergencies like hospitalization, incapacitation, legal or financial crises, or protection from abuse or neglect.

In contrast, permanent guardianship lasts indefinitely or until the ward’s death or court termination. It applies to individuals with long-term incapacities or disabilities affecting decision-making and can encompass various life aspects based on the ward’s needs.

Legal Processes and Responsibilities

Guardianship is a legally supervised arrangement involving specific steps and responsibilities. The process involves:

  1. Filing the Request: The initial request for guardianship is submitted to the County Surrogate’s office.
  2. Court Hearing: A Superior Court judge reviews the case and makes a decision. If the person is deemed incapacitated, a guardian must be appointed.
  3. Medical Examination: The alleged incapacitated person must undergo an examination by a doctor, and a second certification by another doctor or psychologist is also required.
  4. Filing Fee: There’s a fee of $200 for all guardianship cases.
  5. Appointment of Attorney: An attorney is appointed to represent the alleged incapacitated person. They follow specific guidelines and submit a report to the court.
  6. Court Hearing: During the hearing, the potential guardian must demonstrate the person’s incapacity. If successful, the court appoints the guardian.
  7. Qualifying as Guardian: The appointed guardian must qualify with the County Surrogate by affirming their willingness and ability to act. Once approved, they receive official documents called Letters of Guardianship.
  8. Obtaining Short Certificates: Guardians also purchase short certificates, which serve as proof of their guardianship status.
  9. Compensation: Guardians of the estate may receive compensation based on the estate’s total value and a percentage of any income earned.

Rights and Duties of a Guardian

Guardians can make decisions within their authority, access necessary information, and receive support. They may also receive compensation for expenses they incur while performing their duties as guardians.  

They also bear the duty to act in the ward’s best interests, provide care, manage finances judiciously, comply with court orders, and report regularly on the ward’s status. 

Establishing guardianship is intricate and potentially costly, demanding adherence to legal requirements and court procedures. Similarly, guardians should adequately understand their roles and responsibilities to deliver on what they signed up for. Consider seeking guidance from a Wenarsky & Goldstein, LLC guardianship attorney when in doubt. We understand the processes and procedures of filing guardianship petitions and can advise you accordingly. 

The Law Offices of Wenarsky & Goldstein, LLC: Your Guardianship Attorneys

Navigating guardianship complexities requires experience and special knowledge. At the Law offices of Wenarsky & Goldstein Attorneys, LLC, our experienced team handles various guardianship cases, ensuring tailored solutions for clients’ unique needs. With decades of experience, we’ve successfully handled diverse cases, maintaining a client-centric approach and achieving favorable outcomes.

Our services span the entire guardianship spectrum, from filing petitions to defending rights and achieving modifications or terminations when necessary. We can also help you choose between conservatorships and guardianships based on the unique facts of your case. Whether establishing, modifying, or terminating guardianship or defending guardian rights, our team provides comprehensive support. Contact us today for a consultation and entrust your guardianship case to a professional.

Call the Law Office of Wenarsky & Goldstein

At the Law Offices of Wenarsky & Goldstein, LLC, our New York and New Jersey attorneys are experienced and knowledgeable in bankruptcy, estate planning and probate, guardianship, special needs planning, and real estate law. To learn more about how we can assist you with your legal needs, call us today at 973-453-2838.

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