A Primer On New Jersey's Court Rules for Guardianships
By Richard I. Miller
February 9, 2021
In New Jersey, a child is considered an emancipated person at age 18, irrespective of the severity of disability. As a result, parents of special needs children no longer have the legal right to make medical, legal, financial or personal decisions for children over age 18 even if the child is unable to do so him or herself. Parents often must be appointed guardian for their disabled child to acquire the legal authority to oversee and assist with the child’s affairs.
A guardianship is a formal court action initiated by filing a complaint in the Superior Court of New Jersey. While this may seem like a steep hill to climb, New Jersey modified the process in 2016, making it easier to file guardianship applications for persons eligible for and/or receiving services from the Division of Developmental Disabilities (DDD). Previously, a guardianship complaint required an affidavit from a physician or psychologist who personally examined the child within 30 days of filing the complaint. The revised rules extended the examination period to 6 months – making it significantly easier to comply with the time requirements.
The revised court rules also expanded the supplemental documentation that may be filed with the complaint. Previously, an affidavit from a second doctor or officer from DDD was required. Now, in lieu of additional affidavits, either a copy of an Individualized Education Program (IEP) prepared within 2 years or a certification from a licensed care professional with knowledge of the child’s functional capacity are acceptable. Since most individuals who receive or are eligible for DDD services have a current IEP, the steps required to pursue a guardianship are simpler, less expensive and more user friendly.