Guardianships in the

New Jersey Court System

A guardianship is a legal relationship whereby the New Jersey Probate Court gives one person (the guardian) the power to make personal and financial decisions for another (the ward). A guardian may be appointed when a Court determines that an individual is unable to care for their estate or personal affairs by reason of mental illness, mental retardation or physical incapacity. A guardianship is appropriate when impaired judgment or capacity poses a serious threat to a person's welfare. Medical evaluations by two licensed physicians are necessary to establish the proposed ward's condition.

Assuming that physicians are prepared to attest to the proposed ward's incapacity, a petition must be filed with the New Jersey Court requesting the appointment of a guardian. Then, the court directs that the heirs of the ward and the ward themselves receive notice of the filing of the petition for guardianship. The Court sets a date so that anyone wishing to object may do so, including the proposed ward. Then a hearing is held where a judge decides whether a guardian should be appointed.

Unless limited by a Judge, a guardian has total control over the finances and the personal decisions of the ward. This includes deciding where the ward will live, determining how the ward's funds will be spent, and making routine medical decisions for the ward. For the sale of the ward's real estate, the guardian has to seek the approval of the Court in a separate proceeding.

In addition to making decisions concerning potential medical treatment for the incapacitated person, the guardian must account carefully for all of the ward's income and any expenditures made on his or her behalf.

This is accomplished by the guardian filing an accounting listing the ward's assets with the New Jersey court detailing all the income and expenses the ward has. A final account must be filed when the guardianship is terminated. The guardian is liable for their acts until the court allows (approves) the account.

There are several less restrictive alternatives to guardianship. These include the durable powers of attorney, representative payees and health care proxies. Each of these options may avoid or delay the need for a guardian. These documents must be executed before the individual is incapable of doing so due to mental impairment.

Gary B. Cornick, Esq., who has offices in Somerville and New Brunswick, New Jersey, concentrates in the practice of elder law, Medicaid law, estate planning, guardianship, estate litigation and probate administration.   He lectures to seniors, senior organizations and lawyers throughout New Jersey.  Mr. Cornick is a member of National Academy of Elder Law Attorneys, New Jersey Bar Association, Somerset County Bar Association, New Jersey Bar Association Elder Law Committee, Somerset County Bar Elder Law Committee, and a co-chair of the Middlesex County Bar Association Elder Law Section.  Mr. Cornick can be reached by telephone at  (908) 253-0404.  The firm website is located at www.cornicklaw.com.