Life some takes turns that leave someone disabled or otherwise unable to care for themselves. If someone has not executed a Power of Attorney, then a friend or family member will need to file for guardianship.
As our society ages, a growing segment of our population will need assistance from friends and family members to manage their affairs. Our legal system provides a legal mechanism, known as a guardianship, or its close relative, a conservatorship, to accomplish this. A guardianship allows for the appointment of an individual who has the legal authority to make important decisions for someone who is unable to care for themselves or govern their own affairs as a result of an illness or disability.
The most common guardianships involve elderly citizens who may suffer from dementia or other ailments that impair their memory or decision-making. However, young adults with mental disabilities also need guardianships when they turn eighteen. Whether a senior citizen or young adult, the loss of cognitive skills places them at risk both financially and physically. Recognizing the vulnerabilty of someone who suffers from cognitive deficits, our legal system has created a process whereby someone can seek the appointment of a guardian to assist a person in carrying out the daily tasks of living. Unfortunately, this process requires the submission of two affidavits from physicians, the filing of a legal action with the court, an affidavit concerning the assets of the alleged incapacitated person and typically an appearance in court. There will also be an attorney appointed by the court to review the papers and confirm the need for a guardian. That attorney prepares a report to the judge on his or her findings.
After all of the papers have been submitted to the Court, the Judge conducts a hearing to determine whether the alleged incapacitated person is actually incapacitated. If no one is contesting the incapacity, then the Judge can typically make his or her decision based on the papers submitted. Frequently, the Judge will ask to hear from the attorney appointed for the alleged incapacitated person. This attorney will have visited with the alleged incapacitated person, reviewed medical records, spoken to family and/or friends and generally taken steps to corroborate the information contained in the papers filed by the individual seeking the guardianship. On occasion, the alleged incapacitated person will challenge these proceedings and has a right to do so. The Judge will conduct a trial in such a case and the alleged incapacitated person, or his or her attorney, has the right to cross-examine the medical professionals offering their opinion as to incapacity and to offer evidence challenging the allegations of incapacity.
In the end, the Judge makes a determination, and if he finds that the alleged incapacitated person is unable to govern his or her own affairs, he will enter a Judgment declaring him or her incapacitated. Such a judgment is a serious matters, because it takes away that individual’s right to make many decision on their own behalf. The guardian appointed will perform numerous functions for the incapacitated person or “ward”:
- take custody of the ward and establish the ward’s place of abode in or outside of this State;
- personally visit the ward
- provide for the care, comfort and maintenance and, whenever appropriate, the education and training of the ward;
- subject to the provisions of subsection c. of N.J.S. 3B:12-56, give or withhold any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment or service;
- take reasonable care of the ward’s clothing, furniture, vehicles and other personal effects and, where appropriate, sell or dispose of such effects to meet the current needs of the ward;
- institute an action for the appointment of a guardian of the property of the ward, if necessary for the protection of the property;
- develop a plan of supportive services for the needs of the ward and a plan to obtain the supportive services;
- if necessary, institute an action against a person having a duty to support the ward or to pay any sum for the ward’s welfare in order to compel the performance of the duties;
- receive money, payable from any source for the current support of the ward, and tangible personal property deliverable to the ward. Any sums so received shall be applied to the ward’s current needs for support, health care, education and training in the exercise of the guardian’s reasonable discretion, with or without court order, with or without regard to the duty or ability of any person to support or provide for the ward and with or without regard to any other funds, income or property that may be available for that purpose, unless an application is made to the court to establish a supplemental needs trust or other trust arrangement, and
- If necessary, institute an action that could be maintained by the ward including but not limited to, actions alleging fraud, abuse, undue influence and exploitation. As you can see, the duties of the Guardian are numerous and should be taken seriously. If the incapacitated person’s mental state or cognitive function were to improve, the Guardian can petition the court to vacate the judgment of incapacity.