disabled

Special considerations arise for children with disabilities. Parents or parental surrogates have legal authority over their minor children and so can make decisions on their behalf. But they can no longer make decisions for offspring who have reached 18 absent a Guardian appointment. It is essential that parents be decision-makers for their disabled children for medical, educational, legal, and any and all other matters.

A good rule of thumb is that parents of a child with a disability should consider initiating a Guardianship proceeding mid-way through the child’s 17th year. This will generally allow time for the proceedings to be completed.

Once initiated, a Guardianship allows appointment of a temporary guardian during the pendency of the proceeding typically not to exceed 45 days. This is an important step in minimizing gaps in decision-making. N.J.S.A. 3B:12-24.1(c) et seq.

A guardianship is a legal action whereby a third person with standing is authorized by the Court to make decisions for an incapacitated individual. The legal test for incapacity is the inability to govern oneself or manage one’s affairs. N.J.S.A. 3B:1-2. It may apply to individuals with physical or mental illness or disability, as well as those who are chronic substance abusers. In New Jersey, the action is brought in the county Chancery Court, Probate Part.

The Guardian is that third person once vested with the court’s authority to decide, while the adjudicated incapacitated person is called the Ward. The authority granted may be full or limited, depending upon the capabilities of the Ward. For example, if a Ward needs help solely with his or her finances, a limited Guardianship for this specific purpose is warranted. Limited Guardianships should be employed to ensure self-determination as feasible. However, should a Ward be fully incapacitated, then a full Guardianship may be warranted.

A proceeding for third-party decision-making authority may be involuntary (Guardianship) or voluntary. A voluntary proceeding is called a Conservatorship, but in reality, it is rarely seen perhaps because of the flexibility of Guardianships.

Timing is everything: special considerations in Guardianship proceedings

Guardianship: Court-granted surrogate decision-making for an incapacitated person