Date: March 20, 2023Attorney: Richard I. Miller

Becoming a legal guardian in New Jersey can be a complex and time-consuming process, but it can also be a rewarding experience for those dedicated to providing care and support to individuals who are unable to make decisions for themselves. 

When Guardianship Becomes Necessary

In New Jersey, guardianship may become necessary when an individual cannot make decisions or manage his or her own affairs due to physical or mental incapacity. This may be due to conditions such as dementia, Alzheimer’s, stroke, brain injury, developmental disabilities, addiction, or mental illness.

A guardian of the person may be responsible for managing the incapacitated person’s (“IP”) medical, legal and personal affairs.  In some cases, the court may appoint a guardian of the estate to manage the IP’s financial affairs. 

Understanding the Difference Between Guardianship and Power of Attorney

Guardianship requires a legal adjudication by the Court and takes away an individuals’ civil liberties by appointing another person to manage the IP’s personal, medical, legal and financial affairs. Guardianship is typically used when an individual cannot make informed decisions for themselves due to a mental or physical condition. 

Power of attorney, on the other hand, is a legal document in which an individual gives another person the authority to act on his or her behalf.  The person giving the power of attorney retains the right to make his or her own decisions and can revoke the document at any time.  A power of attorney can be limited in scope (for a specific use) or general.  A power of attorney can take effect immediately or spring into effect if the individual subsequently becomes disabled. Unlike guardianship, a power of attorney does not require court intervention.  

An Overview of the Guardianship Process

In New Jersey, the guardianship process starts with filing a verified complaint with the Superior Court of New Jersey. The complaint must include certifications of two doctors (one being an MD) who examined the alleged incapacitated person (AIP) within the last 30 days and conclude he or she lacks capacity in some or all areas of decision making.  The Court will assign an attorney to represent the AIP during the process.  Most of the time, the court appointed attorney will conduct an investigation and issue a report to the Court as to with the AIP should be adjudicated incapacitated and, if so, who should be appointed guardian(s).  If, however, the AIP objects to the guardianship, the court appointed attorney has an obligation to advocate for the AIP and oppose the application.  In this case, a guardian ad litem (GAL) can be appointed by the court to make a recommendation regarding the best interest of the AIP.   

The Superior Court will subsequently conduct a hearing and make a ruling as to (a) the capacity of the AIP; the appointment of guardian(s); (c) the scope of the guardianship; and (d) reporting requirements of the guardian(s).

  • Once appointed, the guardian(s) must qualify with the county surrogate and file periodic reports, which include an annual report of wellbeing and accounting. 

Guardians of the Estate may also be required to post a surety bond to protect the ward’s assets.

In general, the guardianship process is relatively simple when there is no dispute as to capacity and the family is in agreement as to whom should be appointed guardian(s).  However, in situations where the AIP or family member objects to the guardianship or there is a dispute who should be the guardian, litigation can be contentious, expensive, and lengthy. 

Work with Our Experienced New Jersey Elder Law Attorneys

If you or a loved one requires assistance with the guardianship process in New Jersey, don’t hesitate to contact the experienced elder law attorneys at Mandelbaum Barrett PC. Our attorneys have the knowledge and experience needed to guide you through this complex process and ensure that your rights and interests are protected. We will provide you with personalized legal guidance, answer any questions you may have, and help you navigate the legal system with confidence. 

If you’re ready to take the next step, contact us today to schedule a consultation.