When a loved one loses the ability to make informed and reasonable decisions, pursuing a guardianship may become necessary. A guardianship appoints one or more individuals to handle the affairs of another. Guardianship requires a court proceeding and ongoing judicial oversight.
The guardianship process begins by obtaining a report from two doctors who examine the alleged incapacitated person (AIP) and conclude the individual is incapacitated – i.e. unable to handle his or her own personal, financial, legal and/or medical affairs. One doctor must be an M.D. The second doctor can be a psychologist.
The petitioner is required to file a Verified Complaint and Order to Show Cause (OTSC) with the Surrogate’s Court within 30 days of the first doctor’s exam. The complaint must also be accompanied by a certification detailing the assets and liabilities of the AIP. After the complaint and supporting documents are filed by the Court, the OTSC is entered which (a) sets the date for the guardianship hearing before the Superior Court (usually 5-6 weeks later) and (b) assigns a court-appointed attorney for the AIP.
The complaint and OTSC must be served on all interested parties – i.e. the AIP’s next of kin and agents designated in a power of attorney or health proxy previously executed by the AIP. The papers must also be personally served on the AIP. The court-appointed attorney is required to conduct an investigation by meeting with the AIP and speaking with individuals who can offer insight into the situation. The role of the court-appointed attorney is to advocate for the AIP’s wishes to the extent the AIP’s position is not “patently absurd”. If the AIP is unable to articulate a reasonable position, the court-appointed attorney is to act in the best interests of the AIP and issue a report to the Judge with his or her findings and recommendations whether the AIP requires a guardian and, if so, who should be appointed.
In some instances, the AIP is able to retain certain rights – e.g. the right to vote or manage limited amounts of money. This is referred to as a limited guardianship. Other times a plenary (full) guardianship is required – meaning the guardian is responsible to make all decisions for the incapacitated person.
There are two roles for guardians – (a) Guardian of the Person and (b) Guardian of the Property/Estate. The former is responsible for the incapacitated person’s living arrangements, medical decisions, and personal affairs. The latter is responsible for the incapacitated person’s finances. These roles can be held by one person, divided between multiple people or shared by two or more people. Once a guardian is appointed, he or she has reporting requirements to the court, including an inventory of assets, annual reports of wellbeing and accountings.
Guardianships are not limited to cases involving adults with dementia or other cognitive impairments. In New Jersey, a child is considered an emancipated person at age 18, irrespective of the severity of the 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 for him or herself. Guardianships are, therefore, required in these instances. (The process is streamlined for individuals eligible to receive services from the Division of Developmental Disabilities).
Guardianships are often routine and predictable. However, there are instances where the process becomes adversarial because family members disagree whether an individual is incapacitated or who should be appointed as guardian. Adversarial guardianship proceedings sometimes involve allegations of financial misappropriation or exploitation between family members which lead to lengthy, expensive and contentious litigation. If you are considering initiating a guardianship or named as an interested party in a guardianship proceeding, the attorneys at Mandelbaum Salsburg are happy to explain your options and offer guidance to help navigate the process.