If your loved one cannot care for themselves or manage their affairs due to physical, cognitive, or legal incapacity, guardianship can empower you to provide the care and support your loved one needs. Courts can create various types of guardianships based on individual specific circumstances and needs. Understanding how guardianships work can help your family find the tailored solution that can best protect your loved one’s interests, welfare, and dignity.
Understanding Guardianship
Guardianship refers to a legal relationship in which a court-appointed individual called a guardian receives the authority to manage the affairs of a person whose physical or cognitive incapacity renders them incapable of managing those affairs themselves. Families may seek guardianship for a loved one who suffers a severe, prolonged, or permanent disability due to injuries or an older loved one suffering from cognitive decline.
Guardianship may involve a “guardianship of the person” and a “guardianship of the estate.” Guardianship of the person focuses on managing an individual’s personal affairs, such as where the person lives and the healthcare they receive. Guardianship of the estate focuses on managing a person’s financial and legal affairs, including managing assets/real estate or income/expenses, entering contracts, or pursuing legal claims.
Types of Guardianship in New Jersey
In New Jersey, family members and other interested parties may ask the court to establish guardianship for vulnerable individuals who require care and support from another person. Below are some examples of the types of guardianships that courts may create.
Guardianship of a Minor
When a minor child’s biological or legal parents become unable or unwilling to provide parental care and control, whether permanently or for a prolonged period, a court may appoint a guardian to provide that care and control for the child. A guardian of a minor stands in the shoes of a parent to provide the same care that the parent would provide. Guardianship of a minor will continue until the minor’s parent(s) can resume their duties, the child is adopted, or the child reaches the age of majority or obtains emancipation.
Guardianship of an Incapacitated Adult
Guardianship frequently refers to the appointment of a guardian for an incapacitated adult. An adult may require guardianship when physical, cognitive, or behavioral issues render them incapable of managing their personal, medical, financial, or legal affairs. A family may need to seek guardianship for an incapacitated loved one because that person did not establish a durable power of attorney or healthcare proxy to manage their affairs during incapacity.
Temporary Guardianship
A court may order temporary guardianship when a person suffers a prolonged incapacity due to an injury or medical condition from which they will likely recover. Courts also frequently order temporary guardianship during the pendency of guardianship proceedings if the court finds that the subject of the guardianship may face imminent harm without the protection of a guardian, pending a hearing to determine whether to establish permanent guardianship.
Limited Guardianship
In some cases, a court may find that an individual retains the capacity to manage some of their affairs, either alone or with the help of a trusted advisor or with technological assistance. When a person can manage some of their affairs, the court may establish limited guardianship. In limited guardianship, a guardian receives authority to manage a specific set of affairs on behalf of an individual. The individual retains the capacity to manage any other affairs not covered by the order of guardianship. However, the court can instruct the guardian to assist the subject person with decision-making for the issues over which the person retains authority.
Plenary Guardianship
When the court finds that an individual’s incapacity renders them unable to manage any of their affairs, it can appoint a plenary guardian. Plenary guardianship means a guardian has full authority over the subject person’s personal, medical, legal, and financial affairs. Courts often establish plenary guardianship for individuals suffering from severe disabilities or cognitive issues.
Duties of a Guardian
Depending on the scope of their authority, a guardian owes various duties to the person subject to guardianship and to the court that appointed them. First, a guardian owes fiduciary duties to the subject person, which include the obligation to exercise their authority in a reasonable, prudent manner. Fiduciary duties also require guardians to act in the subject person’s best interest and to refrain from benefiting from the guardianship at the subject person’s expense.
In some cases, the court may require a guardian to post a financial bond as security against negligence or misconduct by the guardian that causes financial loss for the subject person.
Guardians must file regular reports with the court to document the guardian’s actions on behalf of the subject person, including providing an accounting of the subject person’s finances (e.g., income, expenses, purchases/sales of assets) when the guardian’s authority includes the subject person’s financial affairs.
Modifying Guardianship
Parties can modify guardianship as necessary based on the subject person’s changing needs and capabilities. For example, a limited guardian or another interested party (such as a family member) may petition the court to expand the scope of guardianship when the subject person demonstrates an inability to manage affairs they previously handled themselves. However, a subject person can also petition the court to modify or terminate a guardianship by demonstrating that they have regained the capacity to manage some of or all their affairs and no longer need the guardian’s protection.
Contact a Guardianship Attorney Today to Understand Your Rights and Options
If you’re interested in establishing guardianship for a vulnerable loved one, get the legal guidance you need to complete the process effectively. Contact Bozanian McGregor LLC today for an initial consultation to learn more about the types of guardianship in New Jersey and to understand what to expect with each. We have extensive experience helping families establish and manage guardianships, and we are proud to welcome families from all social, economic, ethnic, and personal backgrounds.