What is guardianship?
Guardianship is the appointment of a person by the court to exercise control over part, or all, of another individual's person and/or property. The appointment is generally made when a person is found to lack capacity and is incapable of exercising control over themselves.
The person who is appointed by the court to care for the incapacitated person and/or his property is referred to as the “guardian.” The person who lacks capacity is referred to as the “alleged incapacitated person” until a guardian is appointed by the court. Thereafter, the incapacitated person is referred to as the “ward.”
There are two forms of guardianship in the state of New Jersey: limited guardianship or general (“plenary”) guardianship. Limited Guardianship is granted when some but not all decisions about matters involving residency, education, medical treatment, legal assistance, vocational needs or financial management must be made for an individual. General Guardianship may be granted for those individuals who are determined to be incapable of making any decisions on their own.
Who may file a Petition to Determine Incapacity?
Guardianship can be granted to a family member or other interested party, or to the Bureau of Guardianship Services (BGS), under the New Jersey Department of Human Services. The Bureau of Guardianship Services current has a backlog of approximately 4000 cases and does pursue financial Guardianships.
Where is the Petition to Determine Incapacity filed?
The petition should be filed with the Probate court in the county where the alleged incapacitated person resides.
What does the Petition to Determine Incapacity have to state?
Generally, the petition must state the name, age, and address of the alleged incapacitated person as well as the petitioner. It must also indicate the relationship that the petitioner has with the alleged incapacitated person and the primary language spoken by the alleged incapacitated person.
In addition, the petition must provide the names and addresses of next of kin, the name of the alleged incapacitated person’s physician, if known, and any other witnesses with knowledge of the facts.
The petitioner must state the grounds for the belief that the alleged incapacitated person lacks capacity. Further, the law requires the petitioner to identify which rights the alleged incapacitated person is incapable of exercising such as the right to marry, vote, travel, or maintain a driver’s license.
The petition must be signed under oath.
The petition must contain the following affidavits:
(a) An affidavit stating the nature location and value of the “alleged incapacitates” personal and real property
(b) Affidavits of two physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t or the affidavit of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2. Pursuant to N.J.S.A. 3B:12-24.1(d), the affidavits may make disclosures about the alleged incapacitated person.
If your child is DDD eligible or receiving DDD services you may attach 1 physicians certification (examination must be within prior 6 months) and a copy of the childs last IEP (prepared less than 2 years ago).
What happens after the Petition to Determine Incapacity is filed with the court?
The court will appoint an attorney to represent the alleged incapacitated person.
The court will set a hearing date.
What happens at the incapacity hearing?
The alleged incapacitated person has a right to be at the hearing and is required to be at the hearing unless the alleged incapacitated person’s attorney waives the appearance.
At the hearing, the burden to prove incapacity is on the petitioner. The incapacity hearing is an evidentiary hearing where witnesses may be called and evidence may be presented on the record.
If the court finds by clear and convincing evidence that a person is incapacitated and that there is no alternative to guardianship, then the court will adjudicate that the alleged incapacitated person is an incapacitated person. The incapacity may be limited or plenary (full) and may pertain to the person and/or the property.
The alleged incapacitated person retains only those rights not removed by the court. Once incapacity is ordered, the process of appointing a Guardian is determined.
Once the court signs the Judgment appointing a guardian the individual and his/her family receive a copy. The Judgment identifies the guardian(s) of the individual and whether the guardianship is general or limited. If limited guardianship is determined by the court, the areas of guardianship will be identified in the Judgment and Letters of Guardianship.
What happens after the Hearing?
The guardian must appear before the county surrogate to qualify and be issued Letters of Guardianship. The court may require the guardian to secure a surety bond. The bond will protect the ward against a loss of his property if the guardian commits an act of misfeasance or malfeasance related to his or her service. Shortly after being appointed, the guardian must file an inventory of the ward's income and assets with the Surrogate's office. The guardian is required by statute to file a guardianship report annually detailing the status of the ward's condition, health, income and assets
What types of guardianship are there?
There are two types of guardianship, as follows: guardianship of the property and guardianship of the person. Many times both types are required to protect the ward. However, there are cases in which only one type is necessary.
What is guardianship of the property?
The guardian of the property has a duty to locate and “marshal” the assets of the ward. This includes all assets such as bank accounts, stocks, personal property and real estate. The guardian is required to file an initial inventory and to swear that it is accurate and complete. The assets are placed in the name of the guardianship. It is the responsibility of the guardian to ensure that the all assets are safeguarded and spent appropriately. Annual accountings are required to be filed with the court for review and are subject to the court’s approval.
What is guardianship of the person?
Guardianship of the person is a more intrusive than a simple guardianship of the property. When a person has been adjudicated incompetent, the court will appoint a guardian to watch over and make major life decisions for the ward until the reason for incapacity no longer exists. This might be until death in the case of an elderly ward. The guardian of the person makes decisions affecting everything from the ward’s residence, visitation, medical care, socialization, travel, etc.
Guardians of the person are required to file annual reports with the court to inform the court as to the status and well being of the ward.
What’s the difference between a plenary guardianship and a limited guardianship?
In a plenary (full) guardianship, all delegable rights are delegated to the guardian and no rights have been reserved to the ward. In a limited guardianship, some delegable rights are delegated to the guardian while the ward reserves other rights.
How do guardianships end?
Upon death of the ward or a Court determination that the ward is no longer incapacitated.