In the state of New Jersey, legal guardianship allows an individual or an agency to make educational, financial, legal, medical, residential, vocational and 0ther decisions for a minor or an incapacitated adult. The guardian acts on behalf of this individual and in their best interest. Guardianship can be general or limited to specific decisions.
Legal Guardians in New Jersey
According to the New Jersey Department of Human Services, a legal guardian is a court-appointed individual or agency acting on behalf of a person (a minor or an incapacitated adult) to provide for their health, safety and welfare, and to protect their rights under a judgment of guardianship.
The court will appoint guardians for those who cannot make decisions independently. Guardians make decisions about the incapacitated individual's medical care, meals, transportation, and sometimes even where they reside. A guardian typically controls the incapacitated individual's assets, manages their budget and pays their debts.
Types of Guardianships in New Jersey
New Jersey recognizes two types of guardianships: guardianship of the property and guardianship of the person. A guardian can be appointed to the person, the property, or both. It is typically unnecessary to be a property guardian unless the individual has assets in their name. The Bureau of Guardianship Services, a division of the Department of Human Services, assists families with guardianship of the person.
Guardianship of the person can be general or limited. A general, or "plenary" guardianship, is for individuals incapable of making or expressing their own decisions. A limited guardianship is appropriate for individuals capable of making and expressing some decisions. A limited guardianship can occur in educational, financial, medical, legal, residential or vocational matters.
Who Can Be a Guardian in New Jersey?
In the Garden State, a guardian may be the Bureau of Guardianship Services, a family member or another interested party. A person can have more than one guardian in a co-guardianship.
- Have equal authority when it comes making decisions for the incapacitated person.
- Are involved in decision-making and consent needed for the incapacitated person.
- Should be limited to a few, typically up to three, to make decisions on a timely basis.
- Must be appointed by the court, the only entity with the authority to modify the guardianship order.
After a guardian or co-guardians are appointed, additional guardians can be added through the court process. To do this, a family member or guardians of the individual would need to seek an attorney’s guidance. The Bureau of Guardianship Services does not process this request.
A successor guardian may be named in a will, but this is not an automatic appointment – the court must still approve the successor guardian.
Petitioning to Determine Incapacity
The party seeking guardianship must petition the superior court in the county where the allegedly incapacitated individual resides. The petition will state the name and addresses of both the guardian and the incapacitated person and indicate the relationship of the two parties.
The petition must list the primary language spoken by the incapacitated individual, as well as the names and addresses of their next of kin, physicians and other witnesses to their incapacitation.
The petition must state why the guardian believes the individual lacks capacity. It must also state what the alleged incapacitated person cannot do, such as marry, vote, travel or hold a driver’s license. The petition must be signed under oath.
Requirements for New Jersey Guardianship
No matter if the guardianship is general or limited, the state asks for documentation proving its necessity. This proof includes evaluations from either two medical doctors, or from one medical doctor and one psychiatrist stating that the person needing guardianship lacks the capability of making their own decisions or handling their own affairs.
After the court hears the argument for guardianship and reviews the documentation, it will hand down its decision. How long this process takes depends how long it takes to complete the evaluations and the court’s calendar.
Incapacitated Person's Assets
The court requires that the petition list the incapacitated person’s real and personal property by location, type, including any real estate in which the incapacitated person has a present or future interest. Personal property they own or may be entitled to, for example, the total monthly amount of compensation, income, insurance or pension. If the petitioner cannot provide this information, they must state the reasons in the petition.
An assets affidavit is submitted to the court to establish a guardianship bond, which protects the incapacitated person’s estate from an untrustworthy guardian. The bond is typically posted in a large enough amount to cover the value of the assets the guardian controls and can either sell and liquidate.
If a proposed guardian has a criminal record or bad credit, they will usually not qualify for a bond and not be appointed by the court.
Hearing Process for an Incapacitated Adult
The court will appoint an attorney to represent the incapacitated person and set a hearing date. The individual allegedly needing guardianship is required to be at the heading unless their attorney waives their appearance.
At the hearing, the petitioner must prove that the individual is indeed incapacitated – witnesses and evidence may be used. If the court believes the evidence proves that the individual is incapacitated, and that there is no alternative but a guardianship, then it pronounces the individual to be incapacitated.
Court Appointment of a Guardian
Once the court states that the individual is incapacitated, it can appoint the guardian and sign the judgment identifying that party, and also state whether the guardianship is general or limited. If it is limited, the court identifies the areas of guardianship in the Judgment and Letters of Guardianship documents.
The guardian must appear before the court to qualify and receive the Letters of Guardianship, and the court may require them to secure a surety bond. This protects the incapacitated person’s property if the guardian commits misconduct related to the guardianship.
Replacing an Appointed Guardian
An appointed guardian needs to be replaced if they are unable to continue in the role for some reason, or they die. In that instance, a substitute or successor guardian can take the role. However, the request must still go through the court.
The Bureau of Guardianship Services may provide an assessment for the continued need for a guardian, and the individual's next of kin may be asked if they wish to become a substitute guardian. Sometimes, a person named as guardian in a will does not want the role. In that instance, it’s necessary to find another individual or agency to take their place.
Power of Attorney as Alternative to Guardianship
New Jersey allows an individual (known as the principal) to appoint a party (known as the agent) through a Power of Attorney (POA). This written document appoints an agent to make decisions on the principal's behalf if they are incapacitated.
The principal must have a basic understanding that they are appointing an agent to act for them and be able to give consent. The agent acts in the place of the principal in regard to financial or health matters under the POA, which remains effective until the principal revokes it or until their death.
Validity of Powers of Attorney
With a general POA, the principal authorizes the agent to act on their behalf in a wide variety of situations. A POA can also be “durable” or “springing.” A durable POA is effective immediately, and a springing POA becomes effective only upon the principal’s disability.
For any POA to be valid in New Jersey, the principal and the agent must be competent and of sound mind when it is executed. The POA must be signed in front of two witnesses and a licensed notary public.
Guardianship for a Minor
Guardianship of a person under 18 years old can be an emergency (or immediate) guardianship arrangement, or it may be more long term. To qualify for legal guardianship in New Jersey, certain requirements must be met:
- Minor’s parents can no longer care for them.
- Person petitioning for guardianship can financially care for the minor.
- Minor has been in the care of the petitioner for at least 12 months.
- Guardianship is in the minor’s best interest.
- Petitioner is related to the minor or is a close friend of the family.
In most instances, the minor’s biological parents will have visitation rights. A minor’s guardian will have the same rights as their parents but with some exceptions. A guardian cannot change the minor’s legal name, nor can they consent for the minor to be adopted by another person. A guardian’s responsibilities typically include:.
- Making decisions regarding a minor’s well-being and care|
- Making decisions regarding a minor's routine and emergency medical and mental health care.
- Making decisions regarding the minor’s education, including helping them apply for college admission.
- Ensuring the minor’s safety, maintenance, and protection.
Emergency Guardianship of a Minor
Emergency guardianship occurs when both a minor’s parents are in a situation where they cannot care for that minor, but it is not a permanent limitation. In this instance, emergency guardianship can be granted to family members or another trusted individual who knows the child well.
Emergency guardianship doesn't typically last longer than a year, but it can stretch on for longer. When it does, formalizing legal guardianship may be in the best interest of the minor, so they can be properly cared for.
Guardianship and Age Limits in New Jersey
When a disabled individual turns 18 in New Jersey, their parents' guardianship of them ends through the Bureau of Guardianship Services without action by a court. However, the guardian can continue to be involved in a child’s life and may continue to be involved in medical decisions or be asked to give consent in a medical emergency as the child’s next of kin.
When a minor with a developmental disability turns 18, they do not always need a guardian; whether or not they do depends on individual factors.
If a parent has a son or daughter still living at home who has no chronic medical conditions involving frequent hospital stays, legal guardianship may not be immediately needed. However, if they have legal issues that require an advocate for their representation, they may need a guardian.
- Although you are not required to have an attorney, the New Jersey Judiciary recommends that you have one to help you navigate the complicated legal process.
- The Bureau of Guardianship Services of the Department of Human Services can handle the court process for you, but as of 2010, they have a backlog of more than 4,000 cases. They recommend you use the court system directly.
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.