Guardianship for Elders and Other Adults Explained
Senior citizens need the support of their families and communities more as they continue to mature, and the court system doesn’t always have the resources available to give each individual all the attention they would like. Anybody who is at least 18 years old and does not have the ability to care for themselves may have a guardian appointed by the court, so families have to make sure that their children, parents or other relatives don’t fall through the cracks. It’s no easy task, especially because day-to-day life does not simply go away and oftentimes cannot take a backseat. Many families turn to guardians, individuals or agencies appointed by a court on behalf of an individual who is no longer able to make decisions for themselves.
It can be frightening for families and seniors to place their trust in a person who is often a stranger in a system in which they are unfamiliar. The responsive estate practice at Posternock Apell can help families by supplementing and personalizing New Jersey’s resources.
What Is Guardianship?
Guardianship is a specific form of a fiduciary responsibility which involves one party entrusted with property or power to the benefit of another party. Any fiduciary role is accompanied by a fiduciary duty, meaning an ethical obligation to the ward.
A guardian is appointed by the court to act on behalf of someone who is at least 18 years old and has been found by the court to be unable to make their own decisions. In New Jersey, wards must be involved in decisions that affect them to the extent that they are able to participate. There are two main types of guardianship:
General Guardianship or Plenary Guardianship assumes complete responsibility for the rights and well-being of another person, who is found by the court to be unable of making their own decisions in any capacity.
Limited Guardianship leaves wards with some decision making power, when the court has found that they can still make some decisions. Limited Guardians make residential, educational, medical, legal, vocational and financial decisions for their wards. In New Jersey courts, limited guardianship is often preferred to the all-encompassing plenary guardianship because it preserves more of a person’s rights.
Conservatorship is sometimes used as an alternative to limited guardianship. The person in question, the conservatee, enters into an agreement with the conservator, who manages the conservatee’s property only. Like a Power of Attorney, conservatorship is an agreement between someone who is still legally capable of making decisions, and can be revoked at any time as long as the conservatee maintains the cognitive capability to revoke it.
How Do the Courts Protect Seniors and Other Wards?
Guardians can be their wards’ relatives, but do not necessarily have to be. With recent stories of elder abuse making headlines, families may be worried that their loved one isn’t receiving the care they deserve. As the Baby Boomer population matures and relies on increasing levels of support, the courts are busy with a much higher volume of elder guardianship cases.
Some protections are built into New Jersey state law. In New Jersey, the statues defining and regulating guardianship almost always requires the guardian to obtain a surety bond and file it with the court. The surety bond protects a person’s money from misuse by holding a sum in trust. If the court finds that a person’s money has been misused, the person is reimbursed by the bond. New Jersey law also requires annual financial accounting, statements of well-being, and inventory filings.
New Jersey also has a statewide Guardianship Monitoring Program. Volunteers in the Guardianship Monitoring Program gather current data, review files and reports and flag any discrepancies for further review.
Outside of the courts, many families find that a background check also provides some peace of mind.
What Is the Guardianship Process?
In most cases, it’s best to begin with a Power of Attorney. The key difference between guardianship and power of attorney is the ward’s level of decision making capabilities. Guardians are appointed on someone’s behalf when the court has ruled that they are no longer able to manage their own affairs. A Power of Attorney is selected and signed off on by a ward who still has the cognitive capacity to manage some of their affairs. Powers of Attorney preserve more of a senior’s rights.
Whether or not a Power of Attorney is already in place, as the need for care and support increases, families may find that the appointment of a guardian is necessary. Until the court rules that a person is not capable of managing their own affairs, they are said to be an Alleged Incapacitated Person. The court requires substantial proof that a person is incapacitated before verification, which must include an affidavit or certification of a physician or psychologist who has personally examined the alleged incapacitated person within the past six months.
Correctly submitting a verified compliant and the other documents to the court successfully can be overwhelming for families without an in-depth understanding of the related statutes and titles. The New Jersey Courts recommend “that you make every effort to obtain the assistance of a lawyer.”
Contact an Experienced NJ Guardianship Lawyer
In addition to his own clients, Jeff Apell, leader of the Estates practice at Posternock Apell, PC has been appointed by New Jersey courts to serve in several fiduciary roles, including as a permanent and temporary guardian, trustee, estate administrator and receiver. Beyond his court appointed roles, he helps his clients review annual accounting and inventory documents, statements of well-being, and other legal documents.
Whether you’re in the beginning stages and need an attorney to prepare or file legal documents and speak in court, or you need help reviewing and interpreting annual documents like statements of well-being, financial accounting or inventory documents, the attorneys at Posternock Apell, PC can provide responsiveness and attention to ensure your loved one’s best interests and well-being are protected. Call (856) 642-6445 or fill out a contact form to learn how our estate practice can provide you and your family with peace of mind.