As New Jersey residents age, they may develop mental and physical disabilities that make it difficult to handle their personal affairs. Certain children who turn eighteen—such as those with certain disabilities—may have special physical and emotional needs that need to be addressed so they can function and live their lives. Concerned parents, family members, and friends often want to help their loved ones but encounter legal obstacles that prevent them from working with banks, getting medical information, or arranging for long-term care.
Guardianships and conservatorships are two legal methods that the lawyers at The Matus Law Group use to help those in need receive the care and attention they deserve. While there are some similarities between these two tools, several key differences differentiate them from one another. New Jersey guardianship attorney Christine Matus understands what guardianships and conservatorships are, how they are created, who can become a guardian or conservator, and the duties required for each type. We also understand when a guardian should be used and when a conservator is the better option. For more information or assistance, please contact us at (732) 785-4453.
What is a guardianship?
Guardianship is a court process for appointing a guardian, more formally called a guardian of the person, to represent someone who is mentally incapacitated. Individuals cannot appoint their own guardian. Guardianship appointments are not voluntary. An interested person (or entity) files a formal application in New Jersey asserting that an individual cannot manage his/her own affairs and that a guardian is needed.
Medical evidence such as the testimony of a psychiatrist or gerontologist is usually required to confirm that the person is not competent. Once incompetency is established, the court reviews the qualifications of the person seeking to be appointed guardian. Guardians have a fiduciary duty based on trust to act solely and selflessly in the best interests of the individual, the person who needs care.
A guardian is often necessary for people with disabilities such as dementia or Alzheimer’s. The person needing care does have the right to assert that he/she is competent and can manage his/her affairs.
Duties of a Guardian
A guardian of the person makes decisions on behalf of the individual such as where the individual lives, medical decisions including medical treatment, and keeps up with the personal, day-to-day maintenance of the individual. All actions by the guardian must be in the best interest of the individual. Guardians can also decide who the individual spends time with. Some actions such as giving medications that have serious side effects may need additional court approval.
Who qualifies as a guardian?
The guardian is usually a spouse, a relative such as a son or daughter, or a trusted friend. Parents generally do not need approval to take care of their children. Guardians do not have to be related to the individual. Lawyers, private organizations, state agencies such as the New Jersey Bureau of Guardianship Services, and professional guardians can also be appointed as guardians of a person.
What is a conservator?
A guardian of the estate is known as a conservator. The conservator manages the financial affairs of the individual such as collecting assets and income, managing the assets, and preserving their value. As guardians of the person, conservators are often family members. They can also be friends, government agencies, lawyers, an organization, or a professional conservator.
The creation of a conservatorship, usually for aging parents or grandparents, does not automatically require that the conservatee be mentally incapacitated. The creation of a conservator is voluntary and is sometimes created with the consent of the conservatee.
Duties of a conservator
The conservator is obligated to provide for the care of the individual. The conservator has the power and duty to:
- Make necessary payments for the conservatee’s education, support, and maintenance
- Pay any legal debts the conservatee owes
- Collect and manage the assets of the conservatee
- Collect any sums of money due to the conservatee
- Pay all appropriate taxes
- Participate in estate planning
Conservators are often needed to file for Medicaid, Medicare benefits, or Social Security benefits on behalf of the individual.
| Duties of a Conservator | Description |
|---|---|
| Education, Support, and Maintenance | Ensuring the conservatee’s basic needs are met, including living expenses, education, and healthcare. |
| Payment of Legal Debts | Settling any outstanding debts that the conservatee owes. |
| Asset Management | Overseeing and safeguarding the conservatee’s assets. |
| Collection of Sums Due | Gathering any money owed to the conservatee. |
| Tax Payments | Filing and paying any taxes owed by the conservatee. |
| Estate Planning | Participating in planning the conservatee’s estate to ensure their wishes are followed. |
Guardianship or Conservatorship?
The same person can be appointed guardian of the person and the conservator. This type of relationship is known as a plenary guardianship.
Special guardianship considerations:
Where the guardian of the person and the conservator are different people, the guardian of the person usually has ultimate control. For example, if the individual needs medical care, the guardian of the person decides if the care is needed and what treatment is required. The guardian then requests that the conservator make the payments. If there are not enough funds to pay for the care, such as long-term care, then the court usually hears or mediates the conflict.
New Jersey allows for the appointment of a limited guardian. This type of guardian has limited powers that are detailed in the appointment. Guardians are also sometimes appointed to represent an individual during litigation—known as pendente lite. Finally, guardians of a minor can be appointed through a parent’s will.
Special conservator considerations:
You should be aware that conservators are normally required to prepare regular accountings of the financial matters they handle, and they generally cannot write a will on behalf of the individual.
Conservator vs Trustee
Understanding the difference between a conservator and a trustee is crucial for effective estate planning and management. Both roles involve overseeing the interests of another party, but they serve distinct functions and are appointed under different circumstances.
A conservator is appointed by a court to protect the person and/or finances of an incapacitated adult. This typically happens when an individual can no longer manage their own affairs due to physical or mental limitations, and there is no responsible person already designated to take on this role. The conservator’s responsibilities can be broad, encompassing decisions about healthcare, living arrangements, and financial management. The primary focus is on ensuring the well-being and financial stability of the incapacitated person.
On the other hand, a trustee is chosen by an individual while they are still competent, to manage trust property and protect the interests of the trust and its beneficiaries. The trustee’s role is to administer the trust according to the terms set forth in the trust document, which can include managing investments, distributing income or principal to beneficiaries, and ensuring the trust’s assets are preserved and grown. This role is proactive and planned, established to ensure that the grantor’s wishes are fulfilled after their death or during their incapacity.
While both roles involve managing someone else’s affairs, a conservator is appointed by a court due to incapacity, whereas a trustee is pre-selected by a competent individual to manage trust assets. Understanding these distinctions helps in making informed decisions about personal and financial planning.
Contested Guardianship Proceedings
Although most guardianship petitions go through the legal system quickly, there are instances when the appointment of a guardian may be challenged. Sometimes, an individual might object to guardianship and claim that they are able to manage their affairs without the help of a guardian. In other cases, another family member may file a petition to become a guardian and claim that the other individual seeking to be appointed as the guardian is not the best person for the role.
These cases can be emotionally complex and involve litigation. Protracted litigation is not the best option for anyone. Our lawyers at Matus Law Group can work with your family and help you to find a fair and mutually agreeable solution to these kinds of issues. If a compromise is not possible outside of litigation, we are ready to help you get the matter resolved.
The Matus Law Group has years of experience in helping families deal with conservatorship and guardianship matters. Our team of guardianship lawyers in New Jersey understands the importance of having skilled legal advice during these difficult times. We may be able to help. Contact us today to schedule a consultation with our top-rated guardianship lawyers.
Speak with a Caring New Jersey Needs Attorney Today
For years, the Matus Law Group has been assisting New Jersey residents in establishing guardianships and conservatorships for their loved ones. We also contest guardianships and conservatorships when necessary. Additionally, our firm can provide advice on other potential options, such as special needs trusts and powers of attorney. For immediate assistance, please contact our firm at (732) 785-4453.
