As a caregiver or family member, you may be considering the time when a loved one will require the aid of someone to care for them. Whether that person is an elderly family member that is beginning to show signs of mental decline or a special needs child who is reaching the age of adulthood, guardianship will ensure that he or she has the care needed to go forward.
At the Matus Law Group, our compassionate guardianship attorneys can guide you through the legal requirements and compliance of a guardianship or conservatorship for your individual needs. For over 20 years, our New Jersey guardianship lawyers have offered the experience and compassion to help you each step of the way. From nursing home residents to children with special needs, we have created guardianships for every unique situation. To schedule a consultation with an experienced guardianship attorney, call us today (732) 281 0060.
Guardianship is the legal process by which the court appoints a guardian to care for and make decisions for an incapacitated person. Through guardianship, the guardian has the ability and responsibility to make personal and financial decisions of the “ward” or the person requiring care. Because guardianship “removes a person’s fundamental right of self-determination,” according to the New Jersey Department of Human Services, it is always considered a last resort solution.
Guardianship may be required for an elderly individual who has become unable to make important decisions, a special needs family member who is coming of adult age, or a minor who does not have parental care. In each case, a guardian will exercise control over that person’s property, finances, and best interests. To speak with experienced guardianship attorneys at Matus Law Group, call us today (732) 281-0060.
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Any relative or responsible adult that the family has nominated may serve as a guardian but the State of New Jersey gives priority to the spouse first. If the spouse cannot or chooses not to act as a guardian, an adult child becomes next in line. There can also be co-guardians with equal decision-making power who must work together for the benefit of the incapacitated individual. Your lawyer will be able to discuss which family members are best suited for guardianship in your unique situation.
Guardianship is not permanent and there is an annual review of whether the individual needs continued guardianship.
Under the law in the State of New Jersey, an incapacitated individual who is unable to make decisions or understand the consequences of their actions, both physically and financially, should be under the care of a guardian.
In the case of an elderly individual or a special needs child with a disability who is becoming an adult, the court will appoint a guardian to be responsible for making important decisions regarding their care, finances, health, and safety. Before doing so, the court will require proof that the individual cannot meet their own needs. A guardianship attorney can advise and help guide family members who are considering guardianship through this process.
When an elderly loved one is no longer able to manage their own affairs, an application can be filed with the court to permit a family member or trusted friend to handle their financial affairs and look after their wellbeing. This can happen due to any number of health and cognitive issues, from strokes to dementia. The guardian will be tasked with making all financial and personal decisions for this individual.
A guardianship can be appointed for the estate, for the person, or both.
A guardian of the estate will handle all financial decisions whereas a guardian of the person will handle personal and medical decisions.
There can also be two or more individuals who have equal authority over the personal, medical, and financial matters of the ward.
When a child turns 18, he or she is seen as an adult in the eyes of New Jersey law. But in the case of a disabled or special needs individual, he or she may not have the capacity to make decisions about health, finances, or other matters that a legal adult is required to do.
The parent of an adult child with a disability may want to retain that control and maintain decision-making capabilities. This will require that the parent be granted a legal guardianship in order to do that under the law. The child then becomes a ward of the guardian.
In the State of New Jersey, an evaluation is required by the Department of Human Services Division of Developmental Disabilities for anyone who receives state services prior to their 18th birthday. This evaluation makes a clinical assessment regarding the adult child’s ability to live independently and to make choices and decisions on their own behalf and decides whether he or she will require a guardian.
But even if your child does not receive these services, you or another trusted party may petition the court for legal guardianship. The court will make this decision based on the adult child’s disability and their understanding and decision-making capabilities. A lawyer who specializes in special needs family members can help you navigate this process.
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The guardianship process can be broken down into distinct steps. A guardianship lawyer will be able to guide you through them.
Gathering the required documentation for filing is the first step. Each guardianship action will begin with a complaint filed with the court and will be accompanied by certifications from two physicians who have examined the incapacitated person. In addition, an affidavit must accompany the complaint listing assets and debts as well as any income or other financial compensation they receive. The court will then appoint an attorney who will investigate the guardianship and meet with and advocate for the individual.
After the meeting with the court-appointed attorney, a report is filed with the court. A hearing is set where the individuals seeking guardianship may have to answer some questions under oath if the guardianship is being contested. In this case, there may be other testimony from doctors or other medical experts concerning the capacity of the individual. In most cases, however, legal guardianship is not contested and a judgment will be signed, declaring the individual incapacitated and directing the newly-appointed guardian.
Once the guardian is appointed, he or she will become responsible for all duties under the law and be required to report annually on their ward’s status.
Being appointed as a guardian is a grave responsibility and the courts do not appoint a guardian lightly. In most cases, the legal guardian will be required to get bonded, ensuring against mismanagement of abuse of assets. Your lawyer can help you with this step and help you understand your obligations and responsibilities.
A guardian must
● Visit their family member
● Advocate for their loved one’s independence and ask for their input as much as possible
● Decide where their family member will reside
● Establish social opportunities for their family member
● Establish restrictions over their loved one’s freedoms or mobility
● Establish restrictions over others’ visitation and contacts
● Be responsible for their family member’s medical care
● Be responsible for their family member’s education
● Be responsible for all financial affairs
● Protect the estate and engage in asset planning for their loved one
● as well as other responsibilities.
There are times when legal guardianship is not necessary or required. A legally appointed conservator may be a good alternative for some families in cases where the family member is unable to make financial decisions due to advanced age or disability. Your lawyer will be able to help you make this decision.
is more limited in scope than guardianship and must have the voluntary consent of the person being protected. A conservator is still legally appointed by the courts but a conservatorship will only handle financial matters when their loved one requires assistance. Consequently, the responsibilities of a conservator are:
● Making timely payments for their family member’s support and maintenance
● Paying all debts owed by their family member
● Collecting debts that are owed to their family member
● Possessing and managing their loved one’s assets
● Engaging in tax and estate planning for their loved one
If you are not sure which is best for your family, you should discuss your needs and get the guidance of an experienced New Jersey conservatorship attorney to understand your options.
If you have questions about whether legal guardianship or conservatorship is right for your situation and your loved one, Matus Law Group can help. Our compassionate team of guardianship and elder law professionals can answer your questions and guide you through the process, from the appointment of the guardianship to the administration and compliance. Contact us for a consultation with experienced NJ guardianship attorneys. In addition to guardianships, our practice areas include estate planning, special needs lawyers, and many others. Office hours are available in two convenient locations, including in Monmouth County, New Jersey, and Ocean County, New Jersey.