How and Why –
is a Legal Guardian Appointed in New Jersey
and when do I need to prepare for my child who has special needs?

In New Jersey, a legal guardian may be established over a person that is a minor, mentally incapacitated, disabled, or is suffering from severe dementia. A guardian is appointed by a New Jersey Chancery Division Probate Court to manage the financial and/or medical and personal affairs of an individual – often referred to as the “alleged incapacitated person.” As a court-supervised process, it is a public proceeding. In order to commence a Guardianship Proceeding, the Petitioner must have two physicians certify that the alleged incapacitated person is unable to manage their person and property. Upon the filing of the Order to Show Cause for the appointment of a Guardian, the Court appoints an attorney for the alleged incapacitated person. At that point, a hearing is held to determine whether the alleged incapacitated person is actually incapacitated and in need of a Guardian. Once appointed, there are various duties imposed on the guardian to not only oversee the ward’s care, but to also account for the individual’s property in regular reports to the court.

Serious Responsibility for a Legal Guardian
The person who is appointed as a guardian, is often not aware of the serious responsibility that accompanies the appointment. This is because the alleged incapacitated person may be rendered powerless over his or her personal needs, medical treatment and/or property, depending on the powers granted to the guardian. In New Jersey, the probate court has the power to appoint the guardian, who then may be required to post bond and file annual accountings to the court that appointed him or her as guardian. At Tiboni & Tiboni, LLP we assist guardians with fulfilling their duties to their ward.

Guardianship for Minors in the Event of Death or Incapacity
Nominating a suitable person to care for your children if you become incapacitated or at death can be a difficult decision. It is also important to name alternate guardians, in the event your initial choice is not available or becomes unsuitable. While the court gives great consideration to the person you nominate to serve as guardian, it ultimately makes its decision based upon the “best interest” of your child. For many, this decision is more about making it clear who a parent does not want to care for a minor child. Remember, a Last Will and Testament becomes effective upon death, so the nomination of someone to act as guardian for your minor children in your Last Will and Testament does not become effective until you die.

Guardianship for Minors to Receive Property / Inheritance
Is your child or grandchild a beneficiary of your estate? Making a bequest to a child in a Last Will and Testament, or naming a child as a beneficiary of a life insurance policy, individual retirement account (IRA) or 401(k) may have unintended consequences and costs. A guardianship of a minor’s estate or property may need to be established for a minor or other individual who lacks the capacity to receive an inheritance.  Depending upon the amount that is left to the minor, a guardianship may be required even though the minor is being cared for by a parent. It is very common that an insurance company holding the proceeds of a life insurance policy may require the establishment of a guardianship over a minor before the company releases the money.   

Alternatives to Guardianship – Power of Attorney / Health Care Proxy / Trust
It is preferable that a person make known his or her own wishes in advance, including who should manage the person’s property and care for his or her personal needs. While in some instances a guardianship may become necessary despite proper planning, a well-drafted durable power of attorney, health care proxy, living will and even a properly funded trust will often allow one’s personal and financial affairs to be managed without the need for a guardianship. These documents also avoid the need for the accompanying court supervision, potential litigation, and responsibilities imposed upon the guardian, who is often a family member. To the extent that you are merely managing a benefit paid by the Social Security Administration, another alternative to establishing a guardianship is to serve as the representative payee for the person. This status is approved by the Social Security Administration, not the court, and obtaining this status will not allow a representative payee to control other property of the individual.

Contact Tiboni & Tiboni, LLP, New Providence, NJ, for more information, and to set up a consultation.