What is Guardianship and how do I become a Guardian?

Unfortunately, Guardianship is a relatively complicated process in which the Superior Court of New Jersey appoints an individual to serve as the “Guardian of the Person and Property” of another person (referred to under New Jersey law as the “alleged incapacitated person”) when that person is unable to handle his or her personal or financial affairs.

To be appointed a person’s Guardian, a formal application to the Court is required.  The application needs to include all information regarding the alleged incapacitated person’s assets  as well as Certifications (sworn statements) from two medical doctors (or one medical doctor and one psychologist) stating that the individual is “incapacitated” and unable to handle his or her personal and/or financial affairs.  Upon filing of the application, another attorney is appointed by the Court to represent the alleged incapacitated person (the “Court Appointed Counsel.”)  As part of this process, all of the alleged incapacitated person’s immediate family is notified.  It should be understood that those of the same degree of kinship, (for example, all  of the alleged incapacitated person’s children), have an equal right to serve as Guardian.   They may or may not agree who should be appointed.  Sometimes family members agree to have  Co-Guardians  appointed.

After appointment, a Guardian is required to file an Annual Report (an account of the incapacitated person’s assets and well-being) with the Surrogate’s Office.  The Guardian is required to seek Court approval when selling real estate of his or her Ward (an “adjudicated incapacitated person.”)   Similarly, to accomplish Medicaid planning, a Guardian has to seek permission from the Court.  Unlike a person acting under a Power of Attorney, a Guardian is not permitted to give away their Ward’s assets.

Guardianship for the elderly is sometimes necessary but often can be avoided if other estate planning documents, such as a General Durable Power of Attorney and a Health Care Directive, have been properly drafted and executed.   In the circumstance of a mentally disabled child, however, Guardianship may be necessary when that child reaches eighteen (18), the age of majority.

The Law Office of Richard M. Cohen will assist in providing appropriate estate planning to help avoid the necessity of bringing a Guardianship application.   However, in the case where an individual already is mentally incapacitated due to Alzheimer’s disease, senile dementia, Bi-Polar Disorder, closed head injury or other developmental disability,  the Law Office of Richard M. Cohen will provide the guidance and assistance necessary to a bring a Guardianship application.