What Is Guardianship?
A guardian is legally defined as “a person or agency appointed by a court to act on behalf of an individual.” Guardianship, or being named as someone’s guardian, frequently crops up in terms of caring for elderly parents and other loved ones who need a responsible party to make decisions about their health, housing, finances, welfare, and safety.
Parents of adult children with disabilities also can face this issue.
Guardianship is a legal process and removes a person’s “fundamental right of self-determination,” according to the New Jersey Department of Human Services. That’s why it’s considered a solution of last resort.
An adult son or daughter who still lives at home with you and has no serious chronic medical issues may not need an immediate guardianship. But an adult child who needs an advocate to represent his or her needs might.
In New Jersey, the Department of Human Services Division of Developmental Disabilities (DDD) is required to evaluate anyone who receives state services as to their need for a guardian, either when they enter the service system or before their 18th birthday. The agency decides whether a person needs a guardian based on a clinical assessment of that person’s capacity for independent living, the ability to make choices and decisions, and an understanding of the guardianship process.
But even if your child does not receive DDD services, you can petition yourself or another trusted representative (or several) to act as your child’s guardian or co-guardians. The Supreme Court of New Jersey decides on this petition based solely on a person’s decision-making capacity and understanding of the process.
Who Can Serve as a Guardian in New Jersey?
A guardian can be a relative, another interested and responsible person your family nominates, or an agency such as the Bureau of Guardianship Services for family members unwilling or unable to serve as guardians.
Your child also can have co-guardians: more than one person appointed as a guardian. Each has equal decision-making ability and must be involved together in all consents and decisions.
Types of Guardianship in New Jersey
Guardianship is not an all-encompassing responsibility. There are two types of guardianship: guardianship of a person and guardianship of property. The Bureau of Guardianship Services assists families only with guardianship of a person. If your adult son or daughter has assets in his or her name, you would need to consult with a lawyer.
In addition, the guardianship of a person has two distinctions:
General guardianship – Sometimes referred to as “plenary guardianship,” this is appropriate for people who have been found incapable of expressing or making any decisions on their behalf.
Limited guardianship – This is appropriate for people who are capable of expressing or making some decisions. The court specifies limited guardianship in one or more of six areas of decisions: medical, residential, educational, legal, vocational, and financial. You or another family member can petition to be a limited guardian over day-to-day health and financial issues, leaving an adult child with mild disabilities free to vote, marry, make a will, and perform other adult responsibilities.
What Is the Process for Applying for Guardianship?
The Superior Court of New Jersey appoints a guardian or co-guardians in response to a guardianship petition. If your adult child receives DDD services, that agency can facilitate the request for guardianship of a person at no charge for legal fees. There is a waiting list involved, however.
If your adult child does not receive services from the DDD, you can pursue a guardianship “pro se,” meaning “without a petitioning attorney.” Whether you or another person you trust, the proposed guardian would represent himself or herself in court. Click here for more information on applying for guardianship in NJ. However, your adult child also would be required to have a court-appointed attorney during this process.
Another option would be to hire a guardianship attorney, such as Amy MacIsaac, Esq., to represent your family and assist you in completing this process.
Whether you handle the petition yourself or with a guardianship lawyer, the process of applying requires an up-to-date assessment from a medical doctor, psychiatrist, or psychologist licensed in this state. The court requires this assessment to verify the need for a guardian and whether general guardianship or limited guardianship is appropriate.
What You Need to Know About Guardianship
As you weigh whether guardianship is right for your family, here are some points to consider:
Guardianship is not permanent. If your adult son or daughter receives services through the DDD, the agency annually will review the individual’s continuing need for guardianship.
A successor is not automatic if a guardian dies, even if the guardian’s will specifically names someone. The court must process the request for a successor.
Only the court can change who has been appointed guardian or co-guardians.
Once you’ve been named a guardian, you can request to add co-guardians to the guardianship, but again, this requires returning to court.
Even if you are not a guardian, you can still attend school meetings if your child wants you to be present. A parent can be involved in educational planning until the student says otherwise.
Parents of adult children also can remain involved in medical issues without guardianship and might be asked as next-of-kin for consent in a medical emergency.
An alternative to guardianship is having someone appointed a power of attorney (POA). This is significantly less costly than guardianship and involves an individual with a disability having a basic understanding that he or she is appointing someone to make decisions on his or her behalf. A POA can be revoked or changed at any time and can cover a person, property, or both.
How Can a New Jersey Guardianship Lawyer Help?
If you’re unsure about what form of guardianship is best for your family, or if you have additional questions about petitioning for guardianship versus power of attorney, Amy MacIsaac, Esq., can answer those questions.
We are proud to have represented families with physical and developmental disabilities. Because we’re also parents of children with disabilities, we can relate to the particular concerns and challenges many families experience.
Please call us to discuss your family’s situation and address your questions during a free consultation. We’re glad to empower you with the information you need to make informed decisions about your family and your child’s future.