Disabled Adult Guardianship FAQs in New Jersey
By Dr. Mark Franceschini, Education Consultant, Susan Clark Law Group, LLC.
If you are looking for an experienced special education attorney in New Jersey, look no further than Susan Clark Law Group.
When does a student or adult need a guardian?
As a student with special needs nears his or her 18th birthday, parents must examine whether or not he or she is capable of self-governance. Can the student manage his or her personal and property needs. In New Jersey, as in most states, the parents are the legal guardians. They make most of the financial, medical, educational and personal decisions for their child. Upon reaching age 18, that guardianship ends, and the child is emancipated, unless a court of law has ruled otherwise. However, the parents can continue to be involved in the child’s living decisions, such as:
- Attending IEP meetings and other school meetings
- Being involved in medical decisions; and
- Giving consent in a medical emergency as the next of kin.
Prior to this occurring, the parents should consider either applying to the court for applying for guardianship in NJ, or seek another person for that role.
Does my child need a guardian?
Not every individual with a disability needs a guardian when he or she turns 18. This is a decision that would depend on individual circumstances. For instance, if your son or daughter still lives at home with you, and has no serious chronic medical issues that involve frequent hospitalizations, there is no immediate need to pursue guardianship. However, if legal issues arise that require an advocate or attorney to ensure that your child is represented, you should consider applying for guardianship in NJ .
How is a guardian appointed?
To obtain a guardianship in New Jersey, one makes an application for Letters of Guardianship. All guardianship appointments require a judgement by a Superior Court judge. This can be pursued in three different ways. Families can:
- Represent themselves (pro se)
- Retain an attorney
- Receive assistance from The Bureau of Guardianship Services at the Department of Human Services. This process can take over year to be accepted.
The application must be supported by the certifications of two physicians, or one physician and one psychologist. Until the applicant qualifies before the County Surrogate, he or she cannot act as guardian. For example, a person who has not yet qualified cannot make medical decisions for the protected person.
To qualify, the proposed guardian must sign certain documents reflecting acceptance of the guardianship. Fees must be paid to the Surrogate for the issue of the Letters of Guardianship. Entry of the Judgement by the Superior Court judge establishes the guardianship. Qualification may occur immediately following the guardianship hearing; and it must happen as soon as thereafter as possible.
The entire process entails approximately eight weeks.
How many types of guardianships exist?
In New Jersey there are two types of guardianships – Guardianship of the Person and Guardianship of the Estate.
Guardianship of the Person. The guardian assists the protected person in navigating the world around him or her, ensuring that the person handles the tasks he or she can handle, maintaining as much dignity and self-reliance as possible. The desires of the protected person are to be given high consideration.
Guardianship of the Estate. If the protected person has an estate (income from earnings, pension, property, securities, etc.), then it is likely that a guardian be appointed to control the assets and manage the estate. If a protected person has no estate, then it is neither appropriate or advisable to seek a guardian of the estate.
We will deal with each of these two types of guardianships individually.
What does guardianship of the person entail?
The guardian is to listen to the protected person and attempt to ensure that his or her preferences are being met as long as they do not cause harm. The guardian does this in one of two ways:
- Using substituted judgement
- Using judgement based on the best interest standard.
What is substituted judgement?
The guardian makes a decision that the protected person would make if he or she had the capacity to do so. To the extent the protected person can understand the issue at hand, the guardian must discuss the decision with the person and its consequences and alternatives of the choice.
When using substituted judgement, the guardian should talk to the family and friends regarding the conversations with the protected person.
What is the Best Interest Standard?
When dealing with a person who becomes incapacitated later in life, he or she likely had the capacity and the ability to understand cause and effect relationships. As such, he or she had likely discussed preferences before becoming incapacitated. For someone who has been disabled since birth, this could be unknowable. In either of these situations (or when the protected person’s preferences may cause serious harm or injury), the guardian would be making his or her decision based on what is believed to be in the protected person’s best interest. Ultimately, the decision belongs to the guardian.
Doesn’t the protected person have any rights?
The Judgement that the guardian receives from the Superior Court judge (described earlier) will state the rights, if any, that the protected party maintains.
Who can be a guardian?
The guardian can be a family member, another interested person, or The Bureau of Guardianship Services, Department of Human Services. The guardian must be 18 years of age or older.
Can more than one person be appointed as guardian?
Yes. Such an arrangement is called a co-guardianship; and each of the guardian’s are called co-guardian’s. When a co-guardianship exists the co-guardians:
- Have equal decision-making authority
- Must be involved together in all decisions or consents needed for the protected person
- Should be limited to a reasonable number, generally three or less, to ensure that decisions can be made on a timely basis
must, like any single guardian, be appointed by the Superior Court.
What are the responsibilities of the guardian?
The responsibilities of the guardian are varied. He or she is to ensure that the protected person receives appropriate medical care, a proper education, and that his or her overall health and welfare is provided and protected. The guardian must coordinate medical appointments, and be aware of the protected person’s medical needs. (Does the person need things such as eyeglasses or hearing aids? Is the person diabetic or have a heart condition? If still in school, the guardian is to attend necessary meetings, such as IEP planning. Should the person attend life skills training classes? Can he or she cook or balance a checkbook? If the protected person is to benefit from any of these, it is the responsibility of the guardian to coordinate and arrange these for him or her.
How does the guardian arrive at his or her decisions?
The guardian uses the principle of Informed Consent. Informed consent is an individual’s agreement to a particular course of action based on a full disclosure of facts needed to make the decision intelligently. It is based on adequate information on the issue, voluntary action, and lack of coercion. The guardian stands in the place of the protected person and is entitled to the same information and freedom of choice as the person would have received if he or she were not under guardianship.
In evaluating each requested decision, the guardian shall do the following:
- Have a clear understanding of the issue
- Have a clear understanding of options and alternatives, there expected results, risks and benefits
- Determine the conditions that necessitate the treatment or action
- Encourage and support the protected person in understanding the facts, and maximize his or her participation in making the decision
- Determine the immediacy of the decision
- Obtain a second medical or professional opinion
- Seek resources from the family, friends and professionals
- Obtain written documentation of all reports relevant to the decision
- Ensure that appropriate activities and socialization opportunities are provided for the protected person to the extent that he or she has the ability to enjoy them (reading, music, sports, computers, etc.)
- Maintain sufficient contact with the protected person to know his or her health status, capacities and needs.
NOTE: under New Jersey law, unless otherwise ordered, the guardian shall personally visit the protected person not less than once every three months. If this is not always possible, then a deviation should be requested that the Judgement set forth the visitation obligation.
To whom is the guardian responsible?
Generally, the guardian of a protected person must periodically report to the court regarding the guardianship. Most guardians of the person are required to report annually. However, the Superior Court judge who established the guardianship May order a different reporting frequency.
How much is a guardian paid?
New Jersey law does not provide for compensation to a guardian of the person only. If he or she is also appointed as guardian of the estate, then statutory commissions are available. If the guardian is of the person for an individual who does have assets and/or income, he or she may apply to the court for compensation for services that go beyond the scope of typical guardianship duties. This request should be addressed in the initial Judgement or via subsequent application to the court. Unless so granted by the court, the guardian is not entitled to take such payment from the guardianship estate. The New Jersey statutes set forth specific commissions that may be taken by a guardian of the estate, based upon the principal of the estate and the income of the estate.
May the guardian hire an attorney?
Yes, the guardian may hire an attorney, and have the fees for that attorney paid by the protected person’s estate, as long as the court determines that the fees are reasonable and necessary.
When does the guardianship end?
Upon the death of the protected person, the guardianship ends. Before such death, the Superior Court judge determines to end the guardianship because of the protected person’s recovery from his or her decapacited person, the guardian’s death, or because there has been a request for a new guardian.
What does a guardianship of the estate entail?
The guardian of the estate has a priority to gather and protect the assets of the protected person’s estate. To ensure that protection, the court will typically order that a surety bond be posted to cover all the assets that belong to the protected person. Consequently, if the guardian misappropriated or misuses the protected person’s assets, does not properly maintain them or does not keep accurate records, the court may require that the guardian’s bonding company reimburse the protected person’s account for any losses, including any costs involved in the recoupment of the assets. If Theft or fraud was involved, the guardian may be removed from the guardianship and be criminally prosecuted.
As in the guardian of the person, the guardian must apply for the Letters of Guardianship and a Judgement from the Superior Court. This Judgement and Letter of Guardianship may contain guardian limitations and/or restricted assets. When the court restricts an asset, it means that the guardian has limitations on his or her ability to use, sell, or transfer that restricted asset without the court’s approval. The court can restrict any asset of the estate, but typically restricts real property. If the court restricts an asset, the guardian does not need to have its value covered by the surety bond, unless the restriction is eventually lifted. In addition, the proposed guardian may apply to the Surrogate for a short certificate, which contain the basic information set forth in the Letters of Guardianship, stating that by Judgement of a particular date, the guardian was appointed as guardian of the estate of the named protected person.
How does the guardian access and manage the estate’s accounts?
To have access and manage the protected person’s financial accounts, he or she must notify the financial institution of his or her appointment. To do this, a copy of the Judgement and an up-to-date short certificate to allow you access to the accounts. This enables the guardian to open a checking account, and if appropriate, a savings or money market account for the guardianship estate. The guardian cannot use his or her own Social Security number in opening the guardianship accounts. He or she must contact the Internal Revenue Service for a tax identification number.
Once the above is completed, the accounts will be retitled into the name of the guardianship, such as: “Jane Doe, guardian of the estate.” If the protected person has more than one bank account, the guardian should consider combining the funds from these accounts into a single guardianship account – being mindful of the coverage limits of the Federal Deposit Insurance Corporation (FDIC).
To whom should the guardian give notice of his or her guardianship?
The guardian should give notice to all service providers, such as water, gas, and electric utilities, telephone, television, and internet services. The notices should be sent as soon as possible after the guardianship appointment. This is to ensure that the guardian receives the information necessary to pay the financial obligations of the protected person’s estate in a timely manner. Notice should also be provided to the United States Postal Service to ensure that the guardian becomes aware of all debts owed by the protected party.
Should the guardian employ an accountant or financial advisor?
If the estate is large, it is advisable to consult with an accountant or financial advisor regarding the management of the estate.
What kind of record keeping should be kept?
The guardian is required to keep records of the income and expenses he or she managed as the guardian of the estate. The types of records kept will be ordered in the Judgement. They may include bank and brokerage statements, invoices, receipts, and any record needed to support the efforts of the guardian in handling and managing the estate.
How is this affected if the guardian lives with the protected person?
When a guardian is managing the estate of a protected person who resides with the guardian, or is part of his or her household, it is acceptable for the assets or income of the protected person to be applied to cover a portion of household expenses. The guardian should report the total amount of money used from the guardianship estate to cover the protected person’s share of the expenses.
To whom does the guardian report?
As with the guardian of the person, the guardian of the estate of a protected person is required to report to the Superior Court judge annually, unless the Superior Court judge who established the guardianship ordered a different reporting frequency.
Unless waived by the court, a guardian of the estate must file an inventory of the guardianship assets, typically within 90 days of the Judgement. Any waiver of this will also be contained in the Judgement.
What is contained in the guardian estate inventory?
All assets of a protected person’s estate should be listed, the monetary value as of the guardian’s appointment date. The list should include, but is not limited to the assets shown below:
- Bank accounts
- Brokerage accounts
- Annuities
- Life insurance policies (cas surrender value)
- Real property (homes, vacant land, burial plots)
- Automobiles
- Jewelry, artwork, antiques
- Household items
- Cash/coins
What important original documents should the guardian maintain and secure?
The following are original documents the guardian should save:
- Life insurance policies
- Insurance cards
- Health insurance policies
- Car insurance policies
- Home insurance policies
- Deeds
- Titles
- Birth certificates
- Death certificates
May the guardian accept gifts from the protected person?
It is a conflict of interest for the guardian to accept any gift from the protected person without first seeking court approval.
When can a protected party give gifts?
If a guardian is seeking authorization to provide a gift from the protected person, he or she should be prepared to supply the court with all the information below:
- The protected party’s estate plan
- The size of the estate
- Whether or not there is a pattern of prior gifting
- The potential tax savings if the gifts are authorized
- The protected person’s income and expenses
- The physical and mental condition and life expectancy of the protected person
- The likelihood that the protected person’s disability may cease or improve
- The likelihood that the protected person would make this gift if he or she was able to consent
- The ability of the protected person to consent to the gifts
What action is required upon the protected person’s death?
When the protected person dies, the guardian must notify the Surrogate Court and forward a copy of the death certificate upon receipt. Further, the Judgement will indicate anyone else who is to be notified, and within what time frame.
Assets titled as “Payable-on-Death” or “Transfer-on-Death” to an individual, as set forth in a Last Will and Testament or in a Trust, are considered part of the protected person’s estate plan. Assets titled in this manner must be used only after all other assets have been exhausted. The guardian should be familiar with these documents and any designated beneficiaries named within them.
The death of the protected person terminates the guardianship. However, the guardian is still responsible to account for funds and assets of the guardianship estate. In extraordinary circumstances, governed by the statute, the guardian may handle funeral and burial costs, and may pay certain fees for administration or probate.
Is the guardian financially responsible for the protected person?
No. The guardian bears no financial responsibility to the protected person or his or her family.
