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Guardianship of Disabled Adult Children in New Jersey

New Jersey Guardianship Attorney

New Jersey Adult Child Guardianship Lawyer

Your child is considered an adult in the eyes of the law once he or she turns 18, even if a developmental disability, diminished capacity, or mental illness prohibits her or him from making decisions about finances, health care, education, and other important matters.

To retain the authority to make these decisions for your child, you’ll need to request that a court grant you legal guardianship. That’s where a guardianship lawyer from the Susan Clark Law Group LLC can assist you in applying for guardianship in NJ.

Our experienced New Jersey special needs law firm can prepare your petition for applying for guardianship in NJ and represent you at in court to prove that your adult child can’t manage his or her own affairs and needs your guidance.

Contact us now for a free consultation to find out more about how we can help you with guardianship and other legal matters related to a child with special needs.

What Is Guardianship?

A guardian is legally defined as “a person or agency appointed by a court to act on behalf of an individual.” Guardianship, or being named as someone’s guardian, frequently crops up in terms of caring for elderly parents and other loved ones who need a responsible party to make decisions about their health, housing, finances, welfare, and safety.

Parents of adult children with disabilities also can face this issue.

By law, a guardian is required to involve the person in their care to the extent that his or her abilities permit.

Guardianship is a legal process and removes a person’s “fundamental right of self-determination,” according to the New Jersey Department of Human Services. That’s why it’s considered a solution of last resort.

An adult son or daughter who still lives at home with you and has no serious chronic medical issues may not need an immediate guardianship. But an adult child who needs an advocate to represent his or her needs might.

In New Jersey, the Department of Human Services Division of Developmental Disabilities (DDD) is required to evaluate anyone who receives state services as to their need for a guardian, either when they enter the service system or before their 18th birthday. The agency decides whether a person needs a guardian based on a clinical assessment of that person’s capacity for independent living, the ability to make choices and decisions, and an understanding of the guardianship process.

But even if your child does not receive DDD services, you can petition for yourself or another trusted representative (or several) to act as your child’s guardian or co-guardians. The Supreme Court of New Jersey decides on this petition based solely on a person’s decision-making capacity and understanding of the process.

Who Can Serve as a Guardian in New Jersey?

A guardian can be a relative, another interested and responsible person your family nominates, or an agency such as the Bureau of Guardianship Services for family members unwilling or unable to serve as a guardian.

Your child also can have co-guardians: more than one person appointed as a guardian. Each has equal decision-making ability and must be involved together in all consents and decisions.

Types of Guardianship in New Jersey

Guardianship is not an all-encompassing responsibility. There are two types of guardianship: guardianship of a person and guardianship of property. The Bureau of Guardianship Services assists families only with guardianship of a person. If your adult son or daughter has assets in his or her name, you would need to consult with a lawyer.

In addition, the guardianship of a person has two distinctions:

  • General guardianship – Sometimes referred to as “plenary guardianship,” this is appropriate for people who have been found incapable of expressing or making any decisions on their behalf.
  • Limited guardianship – This is appropriate for people who are capable of expressing or making some decisions. The court specifies limited guardianship in one or more of six areas of decisions: medical, residential, educational, legal, vocational, and financial. You or another family member can petition to be a limited guardian over day-to-day health and financial issues, leaving an adult child with mild disabilities free to vote, marry, make a will, and perform other adult responsibilities.

What Is the Process for Applying for Guardianship?

The Superior Court of New Jersey appoints a guardian or co-guardians in response to a guardianship petition. If your adult child receives DDD services, that agency can facilitate the request for guardianship of a person at no charge for legal fees. There is a waiting list involved, however.

If your adult child does not receive services from the DDD, you can pursue a guardianship “pro se,” meaning “without a petitioning attorney.” The proposed guardian — whether you or another person you trust — would represent himself or herself in court. Click here for more information on applying for guardianship in NJ. However, your adult child also would be required to have a court-appointed attorney during this process.

Another option would be to hire a guardianship attorney, such as a lawyer at the Susan Clark Law Group LLC, to represent your family and assist you in completing this process.

Whether you handle the petition yourself or with a guardianship lawyer, the process of applying for guardianship in New Jersey requires an up-to-date assessment from a medical doctor, psychiatrist, or psychologist licensed in this state. The court requires this assessment to verify the need for a guardian and whether general guardianship or limited guardianship is appropriate.

What You Need to Know About Guardianship

As you weigh whether guardianship is right for your family, here are some points to consider:

  • Guardianship is not permanent. If your adult son or daughter receives services through the DDD, the agency annually will review the individual’s continuing need for guardianship.
  • If a guardian dies, a successor is not automatic, even if the guardian’s will specifically names someone. The court must process the request for a successor.
  • Only the court can change who has been appointed guardian or co-guardians.
  • Once you’ve been named a guardian, you can request to add co-guardians to the guardianship, but again, this requires returning to court.
  • Even if you are not a guardian, you can still attend school Individualized Education Program (IEP) meetings if your child would like you to be present. A parent can be involved in educational planning until the student says otherwise.
  • Parents of adult children also can remain involved in medical issues without guardianship and might be asked as next-of-kin for consent in a medical emergency.
  • An alternative to guardianship is having someone appointed a power of attorney (POA). This is significantly less costly than guardianship and involves an individual with a disability having a basic understanding that he or she is appointing someone to make decisions on his or her behalf. A POA can be revoked or changed at any time and can cover a person, property, or both.

How Can a New Jersey Guardianship Lawyer Help?

If you’re unsure about what form of guardianship is best for your family, or if you have additional questions about petitioning for guardianship versus a power of attorney, the Susan Clark Law Group LLC is here to serve you.

We are proud to have represented families with disabilities throughout our more than 100 years of combined litigation expertise. Because we’re also parents of children with disabilities, we can relate to the particular concerns and challenges many of these families experience.

Please call us today to discuss your family’s situation and address your questions during a free consultation. We’re glad to empower you with the information you need to make informed decisions about your family and your child’s future.

 

Guardianship for Disabled Adult Children FAQs

Guardianship of Adult Children With Special Needs FAQs

Who decides guardianship?

The Superior Court of New Jersey appoints a guardian or co-guardians in response to a guardianship petition.

If your adult child receives DDD services, that agency can facilitate the request for guardianship of a person at no charge for legal fees.

Who can be the guardian?

A guardian can be a relative, another interested and responsible person your family nominates, or an agency such as the Bureau of Guardianship Services for family members unwilling or unable to serve as a guardian.

How do I get guardianship of my disabled child?

To retain the authority to make these decisions for your child, you’ll need to request that a court grant you legal guardianship.

How can I apply for guardianship?

Whether you handle the petition yourself or with a guardianship lawyer, all applications for guardianship in New Jersey require an up-to-date assessment from a medical doctor, psychiatrist, or psychologist licensed in this state.

The court requires this assessment to verify the need for a guardian and whether general guardianship or limited guardianship is appropriate.

General vs. Limited Guardianship

General: referred to as “plenary guardianship,” this is appropriate for people who have been found incapable of expressing or making any decisions on their behalf.

Limited: people who are capable of expressing or making some decisions. The court specifies limited guardianship in one or more of six areas of decisions: medical, residential, educational, legal, vocational, and financial. 

What is the difference between substituted judgement and best interest?

When using substituted judgement, a guardian makes a decision that the protected person would make if he or she had the capacity. This is usually based on preferences previously expressed by the protected person. In contrast, a decision made based upon best interest requires the guardian to determine what he or she believes would be best for the protected person. This can be made because doing what the person wants would be unreasonably risky or impractical.

As an example, consider a situation in which a protected person owns a valuable sports car that he or she can no longer use. Although the car is unused, the protected person wishes to keep it stored in an expensive garage. Using substituted judgement, the guardian would keep the car and continue paying the garage fees as long as possible because this is what the protected person wants. However, if the guardian determines that it is impractical to honor the expressed preference because of other expenses, then applying a best interest approach the guardian could sell the car. Note in these two examples, the guardian should first attempt to apply substituted judgement to achieve the known and reasonable preference of the protected person. However, in the second part of the example, when the protected person’s wishes could be impractical and not to the benefit of the estate, then the guardian should make a decision based on a best interest standard.

Is it really necessary to keep all records – even invoices and receipts – to show the expenses paid from the guardianship estate?

Keeping meticulous records is especially challenging for a guardian of the estate. This is especially true if it is complicated by factors such as: family conflict, prior financial mismanagement, or complex and valuable assets. While the same basic rules apply for all guardians of the estate, each guardianship is unique. Some cases require greater vigilance in record keeping. If in doubt, consult an attorney for guidance tailored to the specific facts of your case.

  • Example 1: In some cases, guardian parents care for their disabled adult child in their own home, applying modest public benefits received by the protected person towards shared household expenses. When these are no other relatives or persons who might question a guardian’s spending, records and receipts may never be needed to justify certain expenditures in court.
  • Example 2: In other cases, the protected person resides in a developmental center or group home that takes care of payments for housing, food, and clothing. The guardian may do nothing other than turn over benefits to the facility to make those payments. When the guardian is not directly paying for each item needed by the protected person, maintaining receipts for these types of payments would be impracticable to produce.
  • Example 3: If the guardianship was greatly disputed from the beginning because different family members and/or friends sought to be appointed as guardian. The ones not selected by the court may question the motives of the person who was selected. Consequently, they may apply to court for proof that that the guardian is doing the job properly.
  • Example 4: A protected person may have been financially exploited prior to the establishment of the guardianship; and the may be ongoing legal proceedings regarding his or her assets. As a result, the guardian may have to keep detailed records to document exactly what assets and income were received when he or she became the guardian of the estate.
  • Example 5: There are some guardians involved in estates of great value (in the millions of dollars, or more) where the amounts spent by him or her may be questioned by prospective heirs of the protected person.

When preparing an inventory, how does the guardian determine the value of the assets?

The cash value of bank accounts, brokerage accounts, annuities and/or life insurance policies will be the value on the date the guardian was appointed. Determining the value of other assets may require professional documented appraisals. On the inventory, indicate the items which have appraised values.

What is the schedule for filing periodic guardian of the estate reports?

If ordered to account annually, the due date will be on the anniversary of the Judgement date. The first annual accounting should include all activity from the date of the appointment through and including the last day of the twelfth month following the appointment. Subsequent accountings must be filed in accordance with the schedule set forth in the Judgement or any subsequent Court Order modifying the Judgement.

In a guardianship of the person, when should the Report of Well-Being be filed?

The guardian must consult the Judgement to determine when he or she is required to file as to the well-being of the protected person. In ordered to report annually, the due date will be based on the anniversary of the Judgement date. While most guardian’s of the person report every twelve months, the appointing judge may order a different reporting frequency, such as every two or three years. The Judgement will also indicate who should be served with a copy of the report.

What has to be included in the Report of Well-Being?

The report of well-being requires an attached statement of the protected person’s condition and functional level. The guardian of the person must obtain a written statement from a medical professional (physician, psychologist, clinician, etc.) who has evaluated the protected person within the reporting period.

Questions about filing guardianship reporting forms should be directed to the appropriate Surrogate’s Court. A directory of the New Jersey County Surrogates can be found on the Judiciary website WWW.NJCOURTS.GOV (search County Surrogares).

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