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Guardianship

Guardianships of Incapacitated Adults

For various reasons, there are times when one adult may need to become the guardian of another adult. A guardian is a person appointed by the court to exercise broad authority over a second person. The determination of whether the second adult needs a guardian comes down to whether that adult is incapacitated; that is, whether they are unable to govern themselves and their affairs.

As per N.J.S.A. 3B:12-25, ‘Appointment of Guardian:’

The Superior Court may determine the incapacity of an alleged incapacitated person and appoint a guardian for the person, guardian for the estate, or [both].

An adult’s incapacity might result from a number of maladies. They might have life-long disabilities but did not need a guardian because they were a juvenile. They might be elderly and, though once very sharp intellectually, are now suffering from advanced dementia. Or, due to chronic drug use or alcoholism, they cannot manage their affairs.

If a family member or other loved one believes an alleged incapacitated person is in need of a guardian, they can file an application for guardianship with a surrogate’s court. The court will want evidence of the incapacity, most likely in the form of reports from two doctors who recently evaluated the alleged incapacitated person. The court will evaluate the alleged incapacitated person’s estate to determine whether they have substantial assets that might open them up to financial exploitation or theft. And the court will scrutinize the applicant, making certain that they do not have a criminal or civil history that would exclude them from serving as a guardian.

Courts also scrutinize guardianship applications closely because once a person is adjudicated incompetent, and once the court appoints a guardian to manage the incompetent and his or her affairs, the incompetent person loses many of their rights. As a result, the court will appoint an attorney to represent the interests of the alleged incapacitated person. The law views guardianship as a serious undertaking.

However, a person who is declared incompetent does not lose all rights and autonomy. As per N.J.S.A. 3B:12-57:

f. [A] guardian shall give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. To the extent that it is consistent with the terms of any order by a court of competent jurisdiction, the guardian shall:

g. encourage the ward to participate with the guardian in the decision-making process to the maximum extent of the ward’s ability in order to encourage the ward to act on his own behalf whenever he is able to do so, and to develop or regain higher capacity to make decisions in those areas in which he is in need of guardianship services, to the maximum extent possible.

Should the court award guardianship, the guardian will be allowed to perform a host of activities for the benefit of the ward (the incapacitated person) that they previously were unable to do because of the ward’s status as an adult. The guardian will now be able to pay bills on behalf of the ward, represent the ward in court, and have wide latitude for providing services to the ward that the ward otherwise would not accept or might be unable to secure for themselves.

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