ELDER LAW

Elder law covers an area of legal practice that places an emphasis on those issues that affect the growing aging population.

GUARDIANSHIP
A Guardianship is a protective arrangement established by the court system on behalf of a mentally incapacitated individual. Most frequently, Guardianships are established on behalf of older adults who have lost mental capacity due to senile dementia, major strokes, and severe mental illness, among other conditions. A guardianship is a protective arrangement covering the personal, medical and financial well being of a minor or a mentally incapacitated adult.

Is a Guardianship necessary?
Typically, Guardianships are established when an individual has lost mental capacity and no one can lawfully act for him or her due to the absence of a Living Will and Power of Attorney. However, a Guardianship can also be established even if these documents exist when there is evidence that the individual who is the Agent under a Living Will or Power of Attorney is abusing their authority.

There are two types of Guardianship: 1) Guardian of the Person, and 2) Guardian of the Property. The Guardian of the Person is in charge of making personal and medical decisions on behalf of a mentally incapacitated individual. The Guardian of the Property is in charge of making financial decisions on behalf of such an individual. More than one person can serve as Guardian. Also, there can be Co-Guardians where two or more individuals will have equal authority over both personal and medical matters and financial matters.

How to Become a GuardianIn order to become a Guardian, a petition must be filed with the Superior Court, which is located in the County where the mentally incapacitated individual is domiciled. The paperwork to establish a Guardianship is filed in the Surrogates Office and is heard before the Judge who presides over the Probate Part of the Chancery Division.

Although any responsible adult may serve as a Guardian, there is a State statute, which designates a priority of who can serve. The first person who has the right to serve as a Guardian is the mentally incapacitated individuals spouse. If a spouse is unable or unwilling to serve, an adult child may serve. Afterwards, the State statute details priority as to parents, siblings, and more distant relatives and/or friends.

Three documents must be filed with the court in order to start a Guardianship. They are a Verified Complaint, Affidavit as to Estate, and Order to Show Cause. The Verified Complaint is the centerpiece of the papers, which must be filed. The Complaint must contain a variety of information including the health and limitations of the alleged incapacitated individual, a list of the names and addresses of immediate family members, and a statement as to the need for a Guardianship. The person who is filing this Complaint must sign the Complaint personally to affirm that the facts in the Complaint are accurate. More importantly, the Complaint must be accompanied by two Certifications from physicians who have examined the mentally incapacitated individual. These Certifications must be based upon examinations that occurred no longer than thirty (30) days prior to the filing of the Complaint.

The Affidavit as to the Estate details the income, assets and liabilities of the mentally incapacitated individual. The Order to Show Cause is a document which the Judge executes that sets forth: 1) a date for hearing at which the Guardianship will most likely be established, 2) the names of addresses of the individuals who must be notified of the proposed Guardianship, and 3) the appointment of an independent attorney to represent the interests of the alleged mentally incapacitated individual.

After the hearing date has been established, notices to interested family members about the hearing are sent via certified and regular mail. The mentally incapacitated individual is served as well. He or she is served personally. The court appointed attorney visits with the mentally incapacitated individual to determine whether or not he or she is indeed incapacitated, and to annunciate any reasonable wishes from his or her client. This attorney will frequently meet with the petitioning family member as well. After the attorneys visit, he or she usually files a report with the court indicating that the Guardianship is appropriate. In the event that the individual may actually be competent or that the person who wants to be Guardian is not an appropriate choice, that attorney may file an Answer Contesting the Guardianship Complaint.

After some routine paperwork is filed with the court, a hearing is set. The requirements for the hearing vary considerably from county to county. In some counties, neither the attorneys nor the proposed Guardians need to attend if the matter is uncontested. In most counties, the presence of the attorney and clients is required. In most counties in Southern New Jersey, the petitioning attorney and the court appointed attorney merely ratify the Complaint before the Judge, and the Judge grants the Guardianship. In Central and Northern New Jersey, however, live testimony is taken from the proposed Guardian as to the medical condition of their proposed ward and their desire to be Guardian.

After a Guardianship has been granted, the proposed Guardian needs to execute Qualification Forms before the Surrogate. Afterwards, the Guardian will be issued Letters of Guardianship. In most cases, the Guardian will also need to acquire a bond, which ensures against potential mismanagement or abuse of the mentally incapacitated individuals assets.

CONSERVATORSHIP
Similar to a Guardianship except that it is Voluntary. In New Jersey, it is utilized as a protective arrangement for individuals who are not mentally incapacitated but are frail and do not feel that a power of attorney can protect their interests. It is important to note that a conservatorship only provides for property management. It does not allow for decision making as to an individuals personal or medical needs.

If you would like more information on guardianships and Elder Law issues, you can contact me at (973) 652-7989 or email me at scbrennan.esq@gmail.com.