In the words of Bill Withers sometimes, “We all need somebody to lean on.” As our lives change, so will the person that we need to lean on. As a child and even as an adult that person may be a guardian. A guardian is someone appointed by the court who both advocates and makes decisions for another person. The person that the guardian makes decisions for is called a protected person or ward.
Jump ahead to these sections:
- What Types of Guardianships Exist in New Jersey?
- Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in New Jersey?
- What Forms Do You Need to File for Guardianship in New Jersey?
- How Do You File for Guardianship in New Jersey?
- How Do You Assign a Guardian for a Minor Child in New Jersey?
- How Guardianship Works for Minor Children
- How Guardianship Works for Older Adults
- How Guardianship Works for Adults With Developmental Disabilities or Special Needs
- Frequently Asked Questions: Guardianship in New Jersey
Guardianship laws vary from state to state. If the proposed ward lives in New Jersey, then New Jersey guardianship laws will apply. If you know someone in New Jersey who may need to lean on you, then this article is for you. Here, we discuss how guardianship works in New Jersey for children and families.
What Types of Guardianships Exist in New Jersey?
In New Jersey, there are three main types of guardianships: guardian of the person, guardian of the estate, and guardian of the person and estate. A guardianship may be for a minor child or adult based on the age of the proposed protected person.
The guardianship may be temporary or permanent based on its duration. The guardianship may also be limited or full depending on the capacity of the proposed protected person. These forms of guardianship will be discussed in more detail in the following sections.
Guardian of the person
Under a guardian of the person, the guardian is responsible for the care of the protected person. When the protected person is an adult, the guardian must ensure the protected person maintains as much independence as possible.
Guardian of the estate
A guardian of the estate is responsible for and in control of the protected person’s estate. A person’s estate includes all of their property. A guardian of the estate may not be necessary in all situations. If the proposed protected person has limited assets, then it may be possible to manage their assets using another means.
Guardian of the person and estate
A guardian of the person and estate is responsible for both the protected person’s personal and medical decisions as well as their financial choices.
Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in New Jersey?
In New Jersey, the default guardians for minor children are their parents. They are responsible for their minor children’s custody and control and can make important decisions for their minor children regarding where they live, medical care, and education.
Adults, regardless of age and special needs, are responsible for themselves. This means that they are responsible for making their own decisions about their life, both personally and financially. Older adults and adults with special needs do not have default guardians.
What Forms Do You Need to File for Guardianship in New Jersey?
In New Jersey, filing for guardianship will involve a lot of paperwork. The forms must be completed correctly and submitted to the court and other interested persons. The forms that you need to file may be different depending on the proposed guardianship and the proposed protected person.
To initiate a case you will need to file a verified complaint and supporting documents. If you have questions about the forms that you need to file, you should consult with a guardianship attorney. The guardianship attorney can answer your questions and help guide you through the legal process.
The New Jersey Courts have a self-help center with a forms database. It includes the following forms that you need to file for guardianship of an adult in New Jersey:
- Adult guardianship case information statement
- Verified complaint to appoint guardian of the person and estate (if seeking both)
- Certification of assets
- Certification of physician or psychologist
- Order fixing hearing date and appointing attorney for alleged incapacitated person
- Judgment of incapacity and appointment of guardian(s) of the person and estate
How Do You File for Guardianship in New Jersey?
The process for filing for guardianship in New Jersey will differ depending on whether the proposed ward is a minor or an adult. The person filing for guardianship is responsible for completing all of the necessary forms, filing them with the appropriate court, paying any necessary costs and fees, and ensuring that all interested parties receive appropriate notice.
If you have questions about filing for guardianship in New Jersey, you should contact an experienced guardianship attorney. The guardianship attorney can advise you of what to file, where to file, and filing deadlines.
How Do You Assign a Guardian for a Minor Child in New Jersey?
You cannot assign a guardian for a minor child because guardians are court appointed. However, if you are the parent of an unmarried minor child it is possible to designate a guardian in your will. You may also appoint a standby guardian which will be discussed in more detail below.
You should decide what factors are important to you when choosing a guardian for your minor child. You may also want to consider how the person you designate relates to your current parenting choices and how well they interact with your child.
How Guardianship Works for Minor Children
If a child’s parents are unable to care for the minor child then a guardianship may be necessary. However, every situation is unique and there are many reasons that a guardianship may be necessary for a minor child in New Jersey.
A guardianship of a minor child does not last forever. It terminates by court order or by the “minor’s death, adoption, marriage or attainment of 18 years of age.”
Additionally, there are many different types of guardianship available in New Jersey. Some of these types of guardianship will be discussed below.
Under a general guardianship, the guardian has certain powers and duties towards the minor. The court may modify or restrict these powers and duties. In general, the guardian must take reasonable care of the minor ward’s personal effects. The guardian may receive funds on behalf of the ward and apply them to the benefit of the ward. The guardian is also “empowered to facilitate the ward's education, social, or other activities and to authorize medical or other professional care, treatment, or advice.”
A standby guardian is a guardian that a parent names to assume the duties of guardianship of their minor child upon the occurrence of an activating event. The parent petitions the court for the appointment of the standby guardian. When the activating event occurs, “the standby guardian shall be immediately empowered to assume guardianship duties.”
There are many activating events that a parent may use for a standby guardianship. These events include chronic or fatal illnesses, military service, and incarceration.
Kinship legal guardianship
A kinship legal guardianship is a new type of legal guardianship that allows for a long-term relationship without terminating parental rights. A kinship relationship is a family friend or someone biologically related to the child.
A kinship legal guardian is a caregiver appointed by the court who is willing and able to care for the child. If you have questions about kinship guardianship, access the State of New Jersey’s Kinship Navigator Program. It's a resource to assist kinship caregivers.
How Guardianship Works for Older Adults
Once a person is an adult, age has little to do with guardianship. Adults, regardless of advanced age, have all the rights and powers of being an adult. To place an adult under a guardianship, the adult must be found to be an incapacitated person. It is not enough for a proposed guardian to say that another person is incapacitated, they must prove that the proposed ward is incapacitated.
What does incapacitated mean? In New Jersey, it means “an individual who is impaired by reason of mental illness or intellectual disability to the extent that the individual lacks sufficient capacity to govern himself and manage his affairs.” It is also “used to designate an individual who is impaired by reason of physical illness or disability, chronic use of drugs, chronic alcoholism, or other cause (except minority) to the extent that the individual lacks sufficient capacity to govern himself and manage the individual's affairs.”
A general guardianship is the most restrictive form of guardianship. A general guardian exercises all rights and powers over the guardian. This is rare for adults.
A limited guardian may be appointed where the incapacitated person “lacks the capacity to do some, but not all, of the tasks necessary to care for himself.” The court will make specific findings regarding which areas the incapacitated person retains capacity to manage. This includes capacity regarding “residential, educational, medical, legal, vocational and financial decision making.”
Pendente lite temporary guardianship
Pendente lite is a Latin term that means pending litigation. When an application is pending for general guardianship, the proposed guardian may also request a temporary guardianship. This can only be requested where there is a “critical need or risk of substantial harm.” As its name suggests, the temporary guardianship is for a limited period of time.
How Guardianship Works for Adults With Developmental Disabilities or Special Needs
Once a person turns 18 years old they are considered an adult. As an adult, they have the rights and powers to make their own decisions. This includes adults with developmental disabilities or special needs. A guardianship for an adult is only appropriate if the adult is incapacitated as discussed above.
Keep in mind that in New Jersey, if the adult receives services from the Division of Developmental Disabilities, the Division of Developmental Disabilities is required to evaluate the adult as to their need for a guardian. If necessary, the Division of Developmental Disabilities may facilitate the court action for an appointment of a guardian.
Frequently Asked Questions: Guardianship in New Jersey
We hope that this article is helpful to your understanding of guardianship in New Jersey. If you are considering a guardianship in New Jersey, you should know that you are not alone. There are many resources available to help you with the process. It is also natural to have questions as you learn more about guardianship. Here we answer frequently asked questions about guardianship in New Jersey.
How long is temporary guardianship in New Jersey?
A temporary guardianship is a guardianship that expires within a set period of time. A temporary guardianship may expire as provided for in the court order. A pendente lite temporary guardianship that is granted without notice expires within 45 days “unless within that time the court extends it for good cause shown for the same period.”
What’s the difference between guardianship, conservatorship, and custody in New Jersey?
New Jersey does not use the term conservatorship. Instead, a person with financial responsibility for the protected person is called a guardian of the estate. In many states, a guardianship is what New Jersey calls a guardianship of the person.
A guardianship gives a person the right to make decisions for another person, including a minor child or an incapacitated adult. Custody “gives a parent the right to make decisions for the child.” In New Jersey, there are two different types of custody: legal custody and physical custody. Legal custody refers to the rights of the parent to make “major decisions regarding the child's health, education and general welfare.” Physical custody refers to where a child lives.
Can you get guardianship without going to court in New Jersey?
A guardian is court appointed so you will have to go to court to get guardianship. This is true even with a standby guardianship and a guardian appointed by will.
Are You Somebody To Lean On?
A guardianship is a serious responsibility. If you are interested in becoming a guardian for a loved one, it is important that you understand the roles and responsibilities.
You should also closely look at your relationship with your loved one and consider if you are somebody that they can lean on.