New Jersey Legal Guardianship Explained
A legal guardian is a person or entity appointed to care for someone legally determined to be incapacitated. Often, guardianship involves the decisions usually made by a person with the capacity and with their estate, such as what kind of treatment to obtain, where to live, and how to handle finances. Guardianship in New Jersey (and most states) has its origins in the English common law of the Middle Ages, and is applied to both minors and adults . In New Jersey, there are three general Types of Guardianship: The guardianship of a disabled adult is governed by the provisions of Chapter 26 of the New Jersey Statutes Annotated. These various chapters and subchapters (accompanied by appropriate case law) determine how an incapacitated person should be treated by guardians.
Who is Eligible For Legal Guardianship?
To qualify as a legal guardian of a person with a disability in New Jersey, the court must find that the person has a disability and is unable to provide for his own health care in an independent manner. There are many types of disabilities not just physical but also mental and the other requirements for guardianship are also guided by the severity of the disability.
Mental disabilities such as developmental disabilities include but are not limited to Autism and Cerebral Palsy. There are also disabilities where individuals have the ability to live on their own but still need a guardian for medical decisions. These can include brain injuries, strokes and dementia. Depending on the severity of the mental disability, a limited guardianship may be appropriate where the guardian is limited to only health care decisions. For someone with a physical disability, such as someone in a wheelchair but who is nevertheless still able to participate in decisions regarding their health care, a limited guardianship may also be appropriate.
How The Application Process Works For Guardianships
The process for applying for legal guardianship differs from county to county in New Jersey. However, the following is a general outline of the process:
- . A GAL will be appointed by the Probate Court.
- . The GAL consults with the alleged disabled person and members of his or her family.
- . The GAL prepares a report for the Court. This report contains a recommendation about whether or not Guardianship should be established and which relative or other person should be appointed Guardian.
- . The Court holds a hearing. While the hearing can be complex, a good summary of the procedure is as follows: "The judge will take testimony from the petitioner and the GAL. The petitioner must prove that the alleged incompetent is incapacitated. The petitioner must show what the current living situation is for the alleged incompetent and how it will be improved by the appointment of a guardian. The petitioner must show that the proposed guardian is an appropriate person to serve in that role."
The estimated time for the process is six months; however, the time can vary based upon the age of the alleged disabled adult, if there are any disputes or objections, or if the application becomes contested.
Rights Granted to A Guardian
In the context of legal guardianship for people with disabilities in NJ, a guardian’s responsibilities can essentially be divided into two broad categories: the responsibilities pertaining to the person’s personal affairs, and responsibilities pertaining to the person’s estate (financial and property matters). Additionally, guardianship orders are not perpetual and are subject to periodic review by the court – the guardian duties in that regard are set forth below.
The responsibilities pertaining to the person’s personal affairs include such matters as ensuring the wellbeing of the person and managing their day-to-day relationships, health care, and other related settings. Under the general supervision of the court, a guardian’s personal affairs duties are presumed to encompass respecting the rights of the incapacitated person to the maximum extent possible.
The responsibilities pertaining to the person’s estate generally include the duty to account to the court any income or expenses that occur in the course of administering property, and include the duty to manage estate assets and to avoid self-dealing or conflicts of interest to the extent practicable.
Some additional key points to keep in mind about the position of a parent as a legal guardian of an adult disabled child include the following:
- A person nominated as a guardian will have 60 days from the entry of the guardianship order to begin to act in accordance with the order. If guardian fails to do so, the court may hold the guardian in contempt of court or may remove the guardian.
- The court will review the guardian’s administration of the incapacitated person’s estate at the end of the accounting period; this usually occurs after one year of administration of the estate. After that, the court will review the guardian’s estate management every subsequent year, at which time the guardian will be required to render an accounting of his or her administration.
- The guardian may be compelled to obtain the court’s consent when entering certain types of transactions involving the estate of the incapacitated person. Examples of these transactions include: making gifts from the person’s estate for their own support and maintenance; transferring property by gift to any person (other than the incapacitated person) from the incapacitated person’s estate; creating, modifying, or revoking a trust; mortgaging, pledging, or transferring any property of the person; and selling, exchanging, or encumbering any of the person’s property.
- The courts will appoint a guardian ad litem – who can be a family member of the person or other interested party – to represent the rights of an incapacitated person in a proceeding for guardianship.
Alternatives To Legal Guardianship
New Jersey has recognized the limitations of guardianship and offers several less restrictive alternatives for persons with disabilities and their families. One of those alternatives is the Power of Attorney.
Further, if a person lacks legal capacity and family members believe there are certain decisions that person cannot make, a family member can file a civil action to have a judge determine whether the person lacks the capacity to make specific decisions. If a judge reviews and determines that the person lacks capacity with regard to a specific decision or group of decisions, the judge has the power to appoint a surrogate for that individual. In addition to being able to make legal/financial decisions (like the assigned powers of a Guardian) , these surrogates are also able to make health care decisions. The surrogate also has a duty to work with the person’s informal supports (family and friends) to implement that person’s legal capacity.
Assuring the Rights of Persons with Developmental Disabilities Act (a/k/a the DD Act) is legislation that was enacted in 2005 in New Jersey which put forth additional support and resource to adults with developmental disabilities. Similar to supported decision making, the DD Act offers both informal and formal supports. These supports include the Rightful Lives program to help adults with disabilities understand the decisions they need to make, and an administrative code to help guide adults with developmental disabilities navigate their options (R.S.A 30:1AA-1 (2010)). The DD Act provides for Counseling Services for adults with developmental disabilities and their families (N.J.A.C. 14:4-4.1 to 14). These services include financial, legal, housing, or education counseling services. As well as services that support decision-making or the ability to be involved in the planning of adult life or provide services or supports from a professional, paraprofessional, or a trained volunteer.
Ending An Existing Guardianship
Termination or Modification of Guardianship in New Jersey
Guardianship orders are modifiable and terminable at any time pursuant to Rule 4:86-11 governing modification and termination of guardianships. There are two different timeframes in which guardianship may be modified. Either a ward may have recovered from her disability such that the guardianship is no longer necessary, or a guardian wishes for either herself or the ward to be released from the guardianship. Often a guardian wishes to step down after the death of the parents of the ward or some other circumstance has led to her inability to serve. In such event, a successor guardian will then be appointed. Alternatively, a guardian may be removed for malfeasance.
A guardianship may also be terminated if a showing is made that a guardianship is no longer necessary. There are three alternative ways to demonstrate that a guardianship is no longer necessary:
- If the ward has recovered from their disability, a guardianship should be terminated.
- If a guardianship is no longer necessary because less restrictive alternatives exist, then a guardianship should be terminated. If the ward has an advance directive and appoints a surrogate thereunder, then the guardianship may be terminated. A guardianship should be terminated if the court finds that the ward has subsequently executed a power of attorney or other advance directive.
- If the ward has executed a Trust Agreement, then the Trust Agreement shall suffice as the appropriate alternative to a guardianship.
Resources In NJ
New Jersey has several organizations dedicated to helping families of persons with disabilities, providing resources, legal aid, and advocacy.
The Arc of New Jersey is a non-profit organization that supports families and individuals with intellectual and developmental disabilities (I/DD). They provide various resources and assistance to caregivers, including information on legal guardianship and estate planning options.
Disability Rights New Jersey is a private, non-profit advocacy system that provides free legal services to people with disabilities. They handle a wide range of legal issues, including public benefits, education, Medicaid, and guardianship matters.
New Jersey Disability Law Center (NJ DLC) is another private, non-profit legal resource . The NJ DPC provides free legal advocacy for persons with disabilities so they may enjoy the same opportunities available to all persons. NJ DLC mainly focuses on personal or individual advocacy on disability related needs and concerns. Areas covered include Social Security Disability, SSI, Special Education, Medicaid Waiver Programs, ADA service animals, housing rights, and guardianship issues.
DREDF (Disability Rights Education & Defense Fund) is a public interest, non-profit law and advocacy center dedicated to advancing the civil and human rights of people with disabilities. DREDF offers extensive materials on guardianship and other resources for persons with disabilities.