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The
ABCs of Guardianship for Incapacitated Adults
A
Guardianship is a protective arrangement established by the court system
on behalf of a mentally incapacitated individual.
Most frequently, Guardianships are established on behalf of older
adults who have lost mental capacity due to senile dementia, major
strokes, and severe mental illness, among other conditions.
This
article will discuss three concepts: 1) the necessity of a guardianship,
2) the general procedure used to establish a guardianship, and 3) the
opportunities and responsibilities facing a Guardian.
Is
a Guardianship necessary?
Typically,
Guardianships are established when an individual has lost mental capacity
and no one can lawfully act for him or her due to the absence of a Living
Will and Power of Attorney. However,
a Guardianship can also be established even if these documents exist when
there is evidence that the individual who is the Agent under a Living Will
or Power of Attorney is abusing their authority.
There
are two types of Guardianship: 1) Guardian of the Person, and 2) Guardian
of the Property. The Guardian
of the Person is in charge of making personal and medical decisions on
behalf of a mentally incapacitated individual.
The Guardian of the Property is in charge of making financial
decisions on behalf of such an individual.
Frequently, one person will serve as both Guardian of the Person
and Guardian of the Property. However, more than one person can serve as Guardian.
As such, situations can arise when one person can serve as Guardian
of the Person and another can serve as Guardian of the Property.
Also, there can be Co-Guardians where two or more individuals will
have equal authority over both personal and medical matters and financial
matters.
How
to Become a Guardian
In
order to become a Guardian, a petition must be filed with the Superior
Court, which is located in the County where the mentally incapacitated
individual is domiciled. The paperwork to establish a Guardianship is filed in the
Surrogates Office and is heard before the Judge who presides over the
Probate Part of the Chancery Division.
Although
any responsible adult may serve as a Guardian, there is a State statute,
which designates a priority of who can serve.
The first person who has the right to serve as a Guardian is the
mentally incapacitated individuals spouse.
If a spouse is unable or unwilling to serve, an adult child may
serve. Afterwards, the State
statute details priority as to parents, siblings, and more distant
relatives and/or friends.
Three
documents must be filed with the court in order to start a Guardianship.
They are a Verified Complaint, Affidavit as to Estate, and Order to
Show Cause. The Verified
Complaint is the centerpiece of the papers, which must be filed.
The Complaint must contain a variety of information including the
health and limitations of the alleged incapacitated individual, a list of
the names and addresses of immediate family members, and a statement as to
the need for a Guardianship. The
person who is filing this Complaint must sign the Complaint personally to
affirm that the facts in the Complaint are accurate.
More importantly, the Complaint must be accompanied by two
Certifications from physicians who have examined the mentally
incapacitated individual. These
Certifications must be based upon examinations that occurred no longer
than thirty (30) days prior to the filing of the Complaint.
The
Affidavit as to the Estate details the income, assets and liabilities of
the mentally incapacitated individual.
The Order to Show Cause is a document which the Judge executes that
sets forth: 1) a date for hearing at which the Guardianship will most
likely be established, 2) the names of addresses of the individuals who
must be notified of the proposed Guardianship, and 3) the appointment of
an independent attorney to represent the interests of the alleged mentally
incapacitated individual.
After
the hearing date has been established, notices to interested family
members about the hearing are sent via certified and regular mail.
The mentally incapacitated individual is served as well.
He or she is served personally.
The court appointed attorney visits with the mentally incapacitated
individual to determine whether or not he or she is indeed incapacitated,
and to annunciate any reasonable wishes from his or her client.
This attorney will frequently meet with the petitioning family
member as well. After the
attorneys visit, he or she usually files a report with the court
indicating that the Guardianship is appropriate. In
the event that the individual may actually be competent or that the person
who wants to be Guardian is not an appropriate choice, that attorney may
file an Answer Contesting the Guardianship Complaint.
After
some routine paperwork is filed with the court, a hearing is set.
The requirements for the hearing vary considerably from county to
county. In some counties, neither the attorneys nor the proposed
Guardians need to attend if the matter is uncontested.
In most counties, the presence of the attorney and clients is
required. In most counties in
Southern New Jersey, the petitioning attorney and the court appointed
attorney merely ratify the Complaint before the Judge, and the Judge
grants the Guardianship. In
Central and Northern New Jersey, however, live testimony is taken from the
proposed Guardian as to the medical condition of their proposed ward and
their desire to be Guardian.
After
a Guardianship has been granted, the proposed Guardian needs to execute
Qualification Forms before the Surrogate.
Afterwards, the Guardian will be issued Letters of Guardianship.
In most cases, the Guardian will also need to acquire a bond, which
ensures against potential mismanagement or abuse of the mentally
incapacitated individuals assets.
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