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.
New Jersey requires two professional affidavits or certifications, either two physicians or one physician and one licensed practicing psychologist, based on recent examinations; live testimony is not typically required at filing. The court determines incapacity, then reviews the proposed guardian’s qualifications. Guardians must act in the ward’s best interests and give due regard to the person’s known preferences.
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 make decisions about residence, medical care, and day-to-day personal needs to the extent authorized by the court, while giving due regard to the person’s preferences. Courts may require specific approval for certain extraordinary treatments; the judgment of guardianship defines the scope of authority.
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.
A New Jersey conservatorship is for someone not adjudicated as incapacitated. Importantly, if the proposed conservatee objects, the court shall not appoint a conservator, so practical consent is required.
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 can assist with benefits, but a conservatorship is not required solely for this purpose: Social Security generally uses a Representative Payee, and New Jersey Medicaid allows an Authorized Representative to apply on someone’s behalf.
New Jersey Guardianship Attorney – Matus Law Group
Christine Matus
Christine Matus is the founder and owner of The Matus Law Group, where she provides trusted legal counsel to New Jersey families in matters involving guardianship, estate planning, and elder law. With decades of experience and a strong dedication to client service, Christine offers clear, compassionate guidance to families establishing guardianships for loved ones with special needs or diminished capacity. Her reputation for integrity, professionalism, and practical advice has made her a respected figure among families seeking dependable legal support during life’s most important transitions.
Christine’s dedication extends beyond her law practice. She serves on the Board of Trustees for the Ocean County Bar Association, is an active member of the New Jersey State Bar Association, and volunteers as a mediator for the New Jersey Superior Court. She has written extensively on guardianship and elder law topics, frequently speaks on special needs and nonprofit planning, and supports a range of local and national organizations. Christine’s commitment to service – both to her clients and her community – continues to define her distinguished career in New Jersey’s legal field.
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
Knowing 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. Knowing 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 difficult and involve litigation. Protracted litigation is not the most advantageous 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.
| Category | Conservator | Trustee |
|---|---|---|
| Appointment | Appointed by a court when a person becomes incapacitated | Chosen by an individual through a trust document |
| Purpose | Protects and manages the personal and financial affairs of an incapacitated person | Manages and distributes trust assets according to the trust terms |
| Timing | Established after incapacity (reactive) | Created while the grantor is competent (proactive) |
| Oversight | Court-supervised with regular reporting | Usually independent, with limited court involvement |
| Scope of Authority | Can include both personal and financial decisions | Limited to management of trust property and assets |
When Does a Guardianship or Conservatorship End
Guardianship and conservatorship are not permanent by default. In New Jersey, a guardianship ends if the court restores the person’s capacity, if the person dies, or if the guardian resigns or is removed by the court. The guardian still has to account for past actions. If the ward has died, the guardian must tell the Surrogate within 30 days, deliver any will in their possession to the county Surrogate, finish the final accounting, and wrap up remaining tasks.
If capacity improves, you can ask the court to restore rights. A family member or the guardian can file too. This is a summary action that can fully restore decision-making or restore only some rights, depending on the current medical proof. New Jersey Court Rule 4:86 explains how the court reviews a guardianship and how it can be changed or ended.
Guardianships for minors end when the child turns 18. At that point, the guardian must transfer the remaining property to the former ward and finish any required accounting.
Conservatorships work differently. A conservatorship ends when the conservatee asks the court to terminate it and, after the final account is approved, the conservator turns over all funds. It also ends automatically if the conservatee dies or is later found incapacitated by a court. In that situation, other protections may be needed.
Here is how a New Jersey attorney can help you move forward. We can review your medical updates with your providers, gather the right certifications, prepare and file the papers to restore or end the arrangement, and request a limited option if only some rights should return. We also handle the accounting so you meet court rules and deadlines. If you are ready to modify or close a guardianship or conservatorship, we can map out the filing that fits your goals and guide you step by step.
Speak with an Experienced New Jersey 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.
