How to arrange for guardianship of an impaired adult

Created byВ FindLaw’s team of legal writers and editors | Last updated August 31, 2018

A guardianship is a crucial legal tool that allows one person or entity to make decisions for another (the ward). Courts are tasked with establishing guardianships, and they typically appoint guardians in instances of incapacity or disability. Suppose, for example, that a person is put into a coma from a car accident. Unless that person has a durable power of attorney and medical directives already in place before the accident, the court will appoint a guardian to make both financial and non-financial decisions for the comatose person.

This is important because investments, real estate, etc. can lose their value over time if left unmanaged. There are also bills to pay – a guardian should make sure that excessive liabilities do not accrue during the period of incapacity.

Why Do You Need a Guardian for a Disabled Person?

Mental and physical disability or incapacity can involve severe and long-term conditions that impose great limitations upon an individual’s ability to take care of themselves, express themselves verbally, earn a living, and live independently of the care of others. Such a disability reflects the necessity for a combination of treatments and services.

A guardianship for physically or mentally disabled or incapacitated persons have, in recent decades, been understood to facilitate the independence and self-reliance of the ward. Guardianships are limited as much as is reasonable in order to allow wards to exercise as much control over their lives as possible while maintaining as much dignity and self-reliance as possible. The desires of the wards are given primary consideration. Also, wards are allowed to do as much of their own caregiving as is physically and mentally possible.

What Powers Does a Guardian Have?

Guardians are granted only those powers necessary to accomplish what the disabled or incapacitated person cannot accomplish independently. These powers may include:

  • Assuring the availability and maintenance of care for the ward.
  • Making financial decisions for the ward.
  • Making medical decisions for the ward.
  • Making sure that educational and medical services are maintained and adequate.
  • Submitting updates to the court of the ward’s condition. These court updates describe the ward’s living situation, status of mental and physical health based upon medical examinations and official records, provide a list of services being received by the ward, describe services rendered by the guardian, account for the ward’s monetary assets, and any other information necessary to submit to the court in order for it to assess the status of the ward and the guardian’s duties.

Guardians aren’t expected to micromanage a ward’s life, since they’re not providing caretaking services. One way to think of it is as a provision of decision-making services. Guardians step in when necessary to make decisions and give consent to things that the incapacited person doesn’t have the capability of doing on their own. This is the limit of their duties.

How Is a Guardian for a Disabled Person Chosen?

To be chosen, a guardian has to be qualified to serve. State qualifications differ, but in general, to be qualified, a guardian must be a legal adult (18 years of age) and cannot have a felony or gross misdemeanor record implicating dishonesty (forgery, bribery, etc.). The guardian must themselves not be incapacitated, of course.

The court will choose based on the express wishes of the ward – if the ward is able to express his or her wishes somewhat. If the ward is not able to express his or her wishes, then the court will make a determination based on pre-incapacity documents such as a durable power of attorney or a will, and if there’s no durable power of attorney available, then the courts typically prefer to appoint a spouse, parents, adult children, brothers, sisters, or other family members.

Make Your Wishes Known: Talk to a Family Law Attorney Today

If you’re concerned about potential disability or incapacity and having the court appoint a guardian for you – as opposed to selecting your own guardian candidate – then you should seek out a qualified family law attorney and execute a durable power of attorney and a duly probated will. Preparing for a guardianship ahead of time in the event that you become incapacitated or disabled will guarantee that the persons you select, outside of some extenuating, disqualifying circumstance, will be there to take care of you in the event of some tragic accident or illness. Find a local family law attorney today.

Making Sense of Guardianship

Caregivers for people with Alzheimer’s disease often reach a point when they realize their loved one is unable to make rational or informed decisions. If their parent is cooperative and easy going, this incapacity may not be a problem. But if it’s coupled with a tendency to stubbornly refuse assistance or care, it can be dangerous. This is when guardianship can be an important tool for families. Guardianship also can be required when a person with Alzheimer’s or dementia is no longer able to legally sign power of attorney documents due to mental incapacitation.
How to arrange for guardianship of an impaired adult

Guardianship gives you the legal right to make decisions for a parent or loved one with Alzheimer’s or dementia. Guardianship is obtained through a court proceeding and granted by a judge.

When Guardianship is Required

The elderly parent who lives alone in an unsafe condition but who refuses assistance is an archetypal character in the world of the senior advocacy. For instance, imagine a senior named Elda who has Alzheimer’s disease:

Elda’s grown children became concerned because she’s living alone with Advanced Alzheimer’s. Elda recently left the stove on again and started a minor, but very smokey kitchen fire. Her children unplugged the oven, so she’s been eating generic goldfish crackers and Pepsi (refusing the meal delivery her children attempted to arrange). She has sundowners and often wanders the not-so-safe neighborhood at night looking for a corner-store that closed 20 years ago. She has lost $20,000 and counting to Nigerian email scammers. And she recently fell, bruising her hip badly after tripping on a box of old newspapers in her cluttered apartment. Her children know she’s a disaster waiting to happen.

If Elda continues to refuse assistance in this situation, the best option for her family would be to seek guardianship.

Authorities of Guardians

Guardians have the same sort of authority a parent has over minor child. With guardianship, families can assure that their loved ones who is mentally incapacitated due to Alzheimer’s disease and other types of dementia are:

  • in a safe and dignified living situation
  • free from financial exploitation
  • able to receive necessary long-term caregiver
  • able to receive necessary medical care

How to Obtain Guardianship

America is built on due process. Depriving an adult of his or her rights is no small thing, so these court proceedings assure guardianship is not abused. In the proceeding, the family member who is seeking guardianship (the petitioner) must provide evidence that the person with Alzheimer’s disease or dementia is incapacitated and proof of their own ability to be competent guardians

Determining whether the person with Alzheimer’s disease or dementia is competent is usually the easy part. A court psychologist will have typically made that determination before the hearing, although the petition can present additional evidence at the hearing.

But the bulk of the court proceeding is used to establish that the petitioner is an appropriate guardian. The Alzheimer’s Foundation notes:

The court scrutinizes all of the actions of the guardian, including the management of the individual’s personal financial affairs, and decisions regarding medical treatments and long-term care. Some states even require a potential guardian to take a court-approved class in order to learn about their responsibilities.”

People seeking guardianship need to demonstrate that there is care plan in place and will make appropriate use of their parent’s funds. If the court agrees that the petition would make an appropriate guardian and that the senior is genuinely incapacitated, guardianship is granted.

Elder Attorneys

If you are in a position where you may need to initiate guardianship proceeding, you should consult with an elder attorney if possible. Elder attorneys specialize in matters such as guardianship. That said, because this is similar to family law and a fairly simple proceeding it is not uncommon to seek guardianship without an attorney. If you do have to initiate a proceeding without an attorney, make sure to do in depth research online and at your local library so that you are able to navigate the proceedings effectively.

Establishing Emergency Guardianship

Though most people are experiencing mild to moderate impairment by the time they’re diagnosed with dementia, they’re also still typically capable of understanding their situation and making decisions. Even if your loved one hasn’t created an estate plan and power of attorney at the time of diagnosis, you likely still have time to work though the process and make a satisfactory care plan, including choosing health care and financial representatives.

However, there are a couple of cases where you may need to establish temporary or permanent legal guardianship as a first step. For instance, if:

1. Your loved one is being financially exploited. According to Kim Boyer, founder of Boyer Law Group, this scenario unfortunately common. “Some predators are professional scam-artists,” she says. “They identify single, elderly people who are slightly impaired and have no family around. They then gain the victim’s trust, and get access to his or her funds.” In other cases, caregivers, whether family members or hired help, are themselves the perpetrators of financial abuse.
2. Your loved one truly lacks the capacity to make his or her own decisions, and has not appointed anyone to do so in his or her place. This situation is more common when a relatively young person experiences a catastrophic event, such as a major accident or a stroke, than it is in the case of cognitive illness, but it does occasionally occur.

In either case, both a physician and the court will have to declare that the patient lacks the capacity to direct his or her own care. From there, gaining guardianship is a matter of showing that you’re fully willing and capable when it comes to acting in your loved ones best interest.

Outside of not having felonies or bankruptcies on your record, Boyer says that one of the most important considerations is whether or not you’ve been involved with the patient’s money in the recent past, and particularly whether you’ve made any questionable transactions. “If you want to be appointed someone’s guardian, one of the best things you can do for yourself is to stay completely away from their money,” she concludes, “No matter how you stack up on paper, the court will do its best to look at your actions.”

Guardianship is the court appointment of legal authority over the person and property of another individual, called the ward. Consultation with an attorney or bioethicist is advised for individual patient cases.

Assessment

Guardian Responsibilities: The responsibilities of a guardian are to:

  • Obtain necessary medical care or services needed
  • Make regular in-person visits to the individual
  • Advocate for the individual’s best interests
  • Review health care, treatment, and supportive services records
  • Make an annual report to the court or county Adult Protective Services Office
  • Participate in staff meetings
  • Learn about risks and benefits of any proposed interventions
  • Consult with healthcare providers and social services as needed
  • Act in a way that is least restrictive relative to housing placement
  • Identify and honor preferences whenever possible

The guardian is NOT responsible to financially support or to provide direct care for their ward. The guardian is immune from personal civil liability if he/she acts in good faith, with the ward’s best interests in mind, and with diligence and care. Court appointed guardians are held to the standard of “what an ordinary person would do relative to their own care”.

The guardian is permitted to act contrary to the expressed wishes of the ward under certain conditions. This can, however, be done only with compelling reason. The power to act must be authorized by the court and the decision must meet essential requirements for health, safety and protection from abuse, exploitation, or neglect. This requires assessment of the ward’s understanding, the level of risk to health and safety, and efforts to understand the patient’s decision-making ability and wishes.

  • Physical or mental health care: An incapacitated person has the right to refuse treatment for mental illness, developmental disability, or substance abuse. The right to refuse is only valid if a discussion is held with the individual through the court system. Medication administration may be forced only if a prior good faith effort to convince the individual to take the medications voluntarily has been made and failed. Treatments such as electroconvulsive therapy, psychosurgery or experimental research require consent of both the individual and guardian.
  • Seclusion, restraint, or restriction: These restrictions encompass FDA guidelines for restraint and seclusion in that they may be used only in emergencies and when less intense treatments have failed. They must include behavioral interventions with adequate monitoring and support and identify and follow a clearly defined phase-out plan.
  • Decisions regarding life sustaining/ending therapies: Power to decline or withdraw life sustaining treatment may be instituted by the guardian only If the individual provided no clear direction regarding such treatment. The guardian has the authority to decline artificial nutrition and hydration only if the person’s physician and two independent physicians determine within reasonable medical certainty that the person is in a chronic vegetative state AND the guardian determines in good faith that treatment withdrawal is in the person’s best interest. This requires the guardian to begin with the presumption that the best interest is the continuation of life. This presumption may be overridden by a low chance for recovery, or treatment ineffectiveness. The guardian must give notice to the individual’s “interested parties” and allow time for response and deliberation, with any objecting individuals then petitioning the court to review the decision.

In the setting of a terminal illness, treatments that are painful or intrusive and will prolong dying rather than restoring health and function, can be declined. The guardian cannot base the decision on a determination that the life of the disabled person is lower or of less value than that of others. Ambiguous situations are best referred to the courts.

  • Decisions regarding living arrangements: The guardian can make decisions regarding living arrangements unless the court has ruled otherwise. The guardian is required to determine the individual’s preferences and weigh these in the decision unless they compromise health and safety. The least restrictive appropriate environment should be sought. Similar rules apply to short stays in post-acute or subacute facilities for rehabilitation or recovery.
  • Sexual expression and activity: Capacity to consent to sexual activity is protected so long as it is knowing and voluntary. In a situation where the individual lacks capacity to consent, sexual activity constitutes sexual abuse; if the perpetrator knows of the incapacity, it is criminal sexual assault.
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There are some things worse than death and one of them is how you get there. Losing your mental capacity to make decisions about your health care and financial matters has become a major concern as our population lives longer.

What happens when we lose the mental capacity to make our own decision? Contrary to popular belief, the power to make those decisions for you does not automatically go to one’s spouse, significant other, or children. In 1978 the Alberta Government passed the Dependent Adult Act (DAA). This Act allowed the Court to appoint someone (usually a family member) to be the Guardian and Trustee for the person who could no longer make their own decisions (Dependent Adult). Protection for the Dependent Adult was carried out through periodic Court reviews.

In 2005 the Alberta Government decided to carry out a review of the DAA. Public meetings were held across Alberta and information was also obtained from groups working with Dependent Adults. The review process resulted in the Adult Guardianship and Trustee Act (AGTA) which replaces the DAA. The AGTA gives more flexibility to families trying to help a family member who has lost his or her mental capacity to make decisions.

The AGTA is a major shift in assessing mental capacity. Under the DAA, mental capacity was either there or not there. The AGTA recognizes mental capacity as a continuum with full mental capacity at one end and full loss of capacity at the other end. In between the ends of the continuum are all forms of diminished capacity which may be temporary or permanent.

Part One of the AGTA sets out the principals governing the administration of the Act. The goal of the Act is to promote independence and, to the greatest extent possible, allow an adult to be assisted using the least intrusive measures.

The AGTA provides for the following:

  1. Supported Decision Making (SDM) – in certain situations, an adult with capacity may still benefit from having another person help them make decisions. As people get older, it can be harder for them to understand professional or technical information. Language can often be a barrier in making decisions.

The AGTA allows a person who has the capacity to make decisions to prepare a document called a Supported Decision Making Authorization in which they appoint someone (Supporter) to assist them in making decisions. The Supporter is allowed access to relevant personal information about the adult, to speak on behalf of the adult, and to assist the adult in making and communicating a decision. SDMA only applies to personal matters, including health care. It does not apply to financial matters or property.

  1. Co-Decision Making (CDM) – if:

– an adult ‘s capacity is significantly impaired, and

– the adult could make a decision with guidance and support, and

– the SDM is not adequate,

the Court may decide it is in the best interests of the adult to have a Co-Decision Maker.

A CDM Order will be of use when the adult does not need a full Guardianship Order. A capacity assessment is required to show the adult, although significantly impaired, would be able to make an informed decision with the assistance of a suitable Co-Decision Maker. The adult and the Co-Decision Maker must both consent to the Order. The Order will terminate upon the adult withdrawing their consent. The CDM Order does not apply to financial matters.

  1. Guardianship – this applies when the adult does not have the capacity to make a decision on a personal matter. If the Court determines less intrusive measures cannot be implemented and it is in the best interests of the adult, the Guardianship Order will be issued.
  1. Trusteeship – if it is shown:

– an adult does not have the capacity to make decisions on their financial matters, and

– less intrusive measures will not be adequate,

a Trusteeship Order can be obtained. The Order will protect the adult by setting out accounting requirements and the time period in which the Order must be reviewed.

Avoiding the AGTA

The AGTA will give families and the Court more flexibility in assisting those persons whose ability to make decisions has diminished. However, the Court process will continue to be an emotional and costly exercise for family members as they arrange for the necessary capacity assessments, guardianship plans, and trusteeship plans to be filed with the Court.

It is very challenging to deal with a family member who is losing or has lost his or her mental capacity. To make it easier for family members and to avoid the Court process, you should have an Enduring Power of Attorney and Personal Directive as part of your estate plan. Hopefully, you will never have to use these documents. If they have to be used, they are worth their weight in gold, as they will allow family members to avoid the Court process.

These documents have been referred to in previous articles in this column. Simply put, the Enduring Power of Attorney allows you to choose someone (Attorney) whom you would like to have assist you in your financial affairs. You can appoint someone to immediately act as your Attorney or you can arrange for the Attorney to act only after it has been determined you have lost mental capacity to look after your financial affairs.

The Personal Directive allows you to choose someone (Health Care Agent) to make decisions on your health care if you become mentally incapable of making those decisions. As long as an adult has mental capacity to make decisions on his or her health care, it is not possible to give this power to another person.

The AGTA will be a useful tool to assist families in Medicine Hat in dealing with a family member who is losing or has lost mental capacity. We can make it much easier for families to deal with this situation by making sure an Enduring Power of Attorney and Personal Directive are included in your estate plan. If this is not the case, you should contact your estate planning lawyer while you still have the capacity to do so and give instructions on these documents.

“>hearing must be started by petitioning the Court for either a limited or general guardianship.

Limited guardianship – allows the guardian to only manage some of the affairs of the The minor being discussed in probate and guardianship cases

General guardianship – gives the guardian the right to to manage all business and personal matters for the ward

Hearing

There must be a hearing in the county the person lives in to determine if the adult is incapacitated and unable to take care of themselves without a guardian. The adult in question must be served personally at least 14 days before the hearing. Notice of a hearing on determining their capacity must also be given to, if applicable, their:

  • Spouse
  • Parents
  • Adult children
  • Anyone serving as A person who is appointed by a court to manage the estate of a protected person.

Court Hearing Rights of the Alleged Incapacitated Person

The Court will assign:

“>lawyer (if they do not have one of their own)
An “investigator” to interview the people involved and visit the living situation. This person is typically someone in social The formal delivery of a petition, notice, or other papers to someone in a legal action as noted by court rule.

“>law and an officer, employee, or appointee of the Court
An “examiner” to give a medical exam of the incapacitated person. This person is a doctor, psychologist, or A person who practices registered nursing and who holds a registered nurse license issued pursuant to this chapter or pursuant to a multistate compact privilege.

A bond may be required by the guardian, but are not mandated in every situation. Normally a conservator is appointed if the ward owns a large amount of Anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest in anything that may be the subject of ownership.

“>income (typically, larger than $10,000 a year). The guardian has a right to receive funds and benefits, but if the amount is large, the Court will require a bond.

The information offered on this site is made available as a public service and is not intended to take the place of legal advice. If you do not understand something, have trouble filling out any of the forms, or are not sure these forms and instructions apply to your situation, see an One who is admitted to the State Bar of Arizona and who may represent clients in legal proceedings. Also called lawyers or counsel.

“>attorney for help. Consult a state Law Library or the Legal Aid Resources page for information on free or reduced cost legal aid for more information.

Not all forms may be accepted in all Arizona courts – you should contact the clerk of the court in which you will be You file when you give papers to the clerk at the courthouse where the case is taking place. Courthouses are all different on how you can file papers; in person, by mail, or online. Contact the location before filing. If you do not file correctly, your papers may be turned down.

“>filing to confirm the use of a particular form, determine whether any additional forms are required and verify the Amount of money charged by the court when a case is started.

“>filing fees . The Arizona Bar Foundation assumes no responsibility and accepts no liability for A dispute taken to court to be settled. Same as ‘case,’ ‘suit’ and ‘lawsuit’ when used in the courtroom context.

“>actions taken by users of these documents, including reliance on their contents.

Last updated 16 August 2016

Many people with impaired decision-making capacity may not need a substitute decision maker, as they have family or informal support networks who help them make decisions. However, there may be times where the informal networks are inadequate or uncertain, and a formal process to ensure the protection of the adult’s interests is required.

An adult may require the appointment of a guardian or administrator if the adult is suffering abuse or exploitation, or an agreement such as a sale of property needs to be signed by the adult and no one else is authorised to sign on their behalf.

What are guardians and administrators?

A guardian is someone appointed to deal with the personal and health matters of the adult. These matters include decisions about medical treatment, accommodation, contact with friends and family, and support services. An administrator is someone appointed to manage the financial matters of the adult (s 12 Guardianship and Administration Act 2000 (Qld) (Guardianship Act)).

The Queensland Civil and Administrative Tribunal

The Queensland Civil and Administrative Tribunal (QCAT) has exclusive jurisdiction to appoint guardians and administrators for adults with impaired capacity, except where the Supreme Court appoints guardians or administrators in settlement of damage awards (s 245 Guardianship Act). The tribunal also has jurisdiction to:

  • make declarations about the capacity of an adult, guardian, administrator or attorney for a matter
  • review the appointment of an administrator or guardian
  • ratify decisions by informal decision makers
  • give directions to guardians or administrators
  • make declarations or orders about guardians, administrators and enduring powers of attorney
  • consent to special health care for adults with impaired decision-making capacity (s 82 Guardianship Act)
  • make orders regarding use of restrictive practices.

Applications can be made to QCAT by anyone who has a genuine interest in the welfare of an adult with impaired decision-making capacity. These include family members, close friends and the adult guardian (s 115 Guardianship Act).

The notice period for hearings is seven days and, in some circumstances, QCAT may not give notice of the hearing to the adult in question (s 118 Guardianship Act). The tribunal usually consists of a single member. Leave (permission) of QCAT is required for a person to be represented by a lawyer. In certain circumstances, QCAT may appoint a representative to represent the adult’s views, wishes and interests. The tribunal conducts hearings in a less formal manner than court hearings and is not bound by the rules of evidence (i.e. QCAT is permitted to inform itself in a way it considers appropriate)

The Queensland Civil and Administrative Tribunal can make interim orders, but these can continue for no longer than three months (s 129 Guardianship Act).

An order of QCAT to appoint a guardian or administrator may be reviewed on its own initiative or upon application by the adult, an interested person for the adult, a Public Trustee or certain trustee companies. The review may be requested at any time during the term of the order if there is new information that affects the order or if circumstances have changed (s 29 Guardianship Act). The conduct of the review is regulated by s 31 of the Guardianship Act.

For more information on appeals see pt 8 of the Guardianship Act. In order to promote accountability and transparency in tribunal hearings, information about proceedings are generally available to the public. However, in the interest of protecting the privacy of persons with impaired capacity, QCAT may make limitation orders where QCAT can demonstrate that such an order is necessary to prevent serious harm or injustice to an adult with impaired capacity (ss 100–113 Guardianship Act).

Limitation orders can:

  • prevent the disclosure or publication of certain information
  • close a hearing to members of the public
  • limit an active party’s access to evidence given in the hearing.

Public Guardian

The functions and powers of the Public Guardian are established under the Public Guardian Act 2014 (Qld).

Amongst other things, the Public Guardian is able to:

  • be appointed as a guardian by QCAT
  • investigate complaints about the use of a power of attorney
  • investigate physical and financial abuse or neglect of an adult
  • mediate disputes between attorneys or others
  • act as an attorney or guardian for personal or health matters
  • provide legal advocacy and representation on behalf of a person with impaired capacity by instructing a solicitor to act
  • provide consent to medical treatment when no statutory health attorney is available.

The Public Guardian is vested with broad investigative powers. Some of the investigative powers include requiring an attorney or an administrator to provide accounts and records in order to carry an audit and issuing a summons to a person to provide information.

The Public Guardian also has protective powers. These powers include suspending an attorney’s power, starting legal proceeds to claim or recover property and obtaining a warrant to enter and remove a person from an immediate risk of harm.

Public Advocate

The Public Advocate is an independent statutory officer appointed under s 208 of the Guardianship Act. The function of the public advocate is to provide systems advocacy. This involves speaking, acting or writing in order to improve the systems that support and provide services to people with impaired capacity and address the gaps and failures in those systems.

The Public Advocate promotes and protects the rights of adults with impaired capacity from neglect, exploitation and abuse; encourages programs that assist the adult to reach the greatest practical degree of autonomy; and monitors and reviews the delivery of services and facilities to adults.

The Public Advocate has the power to intervene in court or tribunal proceedings involving the protection of the rights or interests of an adult, providing the court has granted leave to do so (s 210 Guardianship Act).

The Office of the Public Advocate publishes material on a range of these matters.

At 18 all individuals, including those with developmental disabilities, reach the legal age of majority. This means that parents can no longer make decisions legally on behalf of an adult child, regardless of the nature of the individual’s disability and regardless of whether or not the individual still lives with the family.

Some families may want to consider guardianship as an option for their family member. A guardian is defined as “a person or agency appointed by a court to act on behalf of an individual”.

Establishing guardianship is a legal process, and many families turn to the Bureau of Guardianship Services at the Department of Human Services for help with the process. Guardianship, however, can be established without the Bureau’s involvement.

In all cases, guardianship should be viewed as a solution of last resort, because it removes an individual’s fundamental right of self-determination. Before you apply there are alternatives to guardianship that may be appropriate for your family member.

  • Attendance at school IEP meetings is not dependent on a guardianship relationship. A parent can still be involved in educational planning unless the individual expressly indicates otherwise.
  • Parents can still remain involved in medical issues, and might be asked to give consent as next-of-kin in an emergency.
  • All applications for guardianship require an up-to-date assessment from either a psychologist or a psychiatrist licensed in the State of New Jersey, or from a licensed medical doctor.
  • A guardian can be a family member, another interested person, or an agency such as the Bureau of Guardianship Services. A co-guardian can also be named. Co-guardians:
  • are more than one person appointed as guardian and each have equal decision-making authority
  • must be involved together in all decisions or consents needed for the individual
  • the Bureau does not act as co-guardian.

  • Once a guardian or co-guardians have been appointed by the Superior Court, only the court can modify or change the guardianship order.

  • General Guardianship
    • sometimes referred to as ‘plenary’ guardianship
    • appropriate for people who have been found incapable of making or expressing any decisions
  • Limited Guardianship
    • covers decision-making around residential, educational, medical, legal, vocational, and financial issues
    • appropriate for people who have been found capable of making and expressing some, but not all, decisions
  1. An individual can appoint a Power of Attorney (POA) to make decisions on his or her behalf
    1. Individuals with a disability must be able to understand, on a basic level, that they are appointing someone to make decisions on their behalf
    2. An individual appointing a POA must be able to consent to it
    3. A POA can cover a person and/or property
    4. A POA can be revoked and/or changed at any time, based on changing needs
    5. A POA is significantly less costly than a guardianship
    6. It is best to work through an attorney to establish a POA
  2. Families may pursue guardianship “Pro Se,” which means “petitioning without attorney”
    1. The person seeking guardianship represents himself or herself in court
      i . Eliminates the cost of hiring an attorney to file the petition
      ii. Remaining costs include court fees, guardianship assessments by a psychologist or physician, and the required court-appointed attorney to represent the individual
    2. This is a great choice for families who can complete the process on their own, especially if the individual is not already under DDD-funded services.
    3. Forms and instructions can be found on the Judiciary’s Guardianship Support website: https://njcourts.gov/courts/civil/guardianship.html.
      i . Click on “Represent myself in court”
      ii. Click on “How to file for guardianship of a developmentally disabled person”

      Please Note:
      These instructions include the information that two reports must be signed under oath attesting to the individual’s need for guardianship, and that one of those reports is submitted by a DDD official, typically the regional administrator. Please be aware that a DDD official is only able to sign such a report if he or she or DDD staff has first hand, personal knowledge of the individual. If this is not the case, then a second affidavit will be needed from a physician or NJ licensed psychologist.
  3. Families can hire an attorney at their own cost to complete the entire process.
    1. A relative or other interested party may choose to pursue appointment as guardian privately, at his or her own expense
      i . Thisis the only option if guardianship is to be of person and property
  4. Families can ask the Bureau of Guardianship Services to process a guardianship petition, but:
    1. There is currently a high volume of pending requests
    2. This process is for guardianship of the person only
    3. Families seeking guardianship of property should pursue hiring an attorney, as described above

For additional information, please visit the Judiciary’s Guardianship Support website: https://njcourts.gov/courts/civil/guardianship.html.

What is a guardianship?

A guardianship is a protective proceeding in which the court is asked to appoint an individual (or entity) to make decisions and provide care for a minor or an incapacitated adult (known as the “ward”). The court can appoint a guardian for an unmarried minor if all parental rights of custody have been terminated or suspended by circumstances or by prior court order. With regard to an adult guardianship, before making such an appointment, the court must find that (1) the person for whom a guardian is sought is incapacitated; (2) the appointment is necessary to provide for the demonstrated needs of the incapacitated person; and (3) the person’s needs cannot be met by less restrictive means, including the use of technological assistance.

If you are seeking appointment as a guardian, you will be required to complete an affidavit which the court may require you to furnish a full set of fingerprints to enable the court to conduct a criminal background investigation and you will have to pay the cost for this. By accepting the appointment as guardian, you are consenting personally to the jurisdiction of the court in any proceeding relating to the guardianship.

Generally, a guardian has the same powers, rights and duties with respect to the ward that a parent has with respect to an unemancipated minor child. A guardian makes personal decisions for the ward with regard to living arrangements, education, and social activities. A guardian is responsible to make arrangements for the ward’s medical or other professional care, counseling, and mental health treatment outside of a locked psychiatric or mental health facility. Under certain circumstances, a guardian can obtain authority to arrange for mental health treatment care and authority within a locked setting. A guardian must take reasonable care of the ward’s belongings and commence protective proceedings if the ward has property which is in need of protection.

Sometimes a guardianship can be avoided for an adult who has already executed a valid health care power of attorney, mental health care power of attorney, and a living will (for end of life decisions). However, the adult must have been competent to understand the powers of attorney when executed. It should be noted that even if an adult has powers of attorney and a living will, he or she could still be subject to a guardianship proceeding. This is particularly true if someone believes the person nominated as the agent in a heath care power of attorney is not acting in the best interests of the incapacitated person. A guardianship will invalidate pre-existing powers of attorney.

There are many other duties and responsibilities that a guardian has with respect to a ward. If you have questions or want help determining whether a guardianship is right for your loved one, we know how to analyze the situation. If a guardianship is warranted, we can prepare and file the correct documents and conduct the court hearing to secure your appointment.

I have a child who is 17 or older and cannot make good decisions. Can I be appointed as guardian?

What does “incapacitated” mean?

Will a guardianship create unreasonable limits on my loved one?

The court encourages the development of maximum self-reliance and independence of the incapacitated person. Therefore, a guardianship can be limited or general, depending on the demonstrated needs of the individual. The court can also specify time limits on the guardianship and limitations on the guardian’s powers.