Ward

March 16, 2012 by Rebecca Esmi

Who may become a Guardian and how?

Inter-meddlers and strangers need not apply! The law holds that such parties may not institute proceedings. Instead, the court requires “standing”: a relationship based upon blood, marriage, civil union, trust or contract. It should be noted that a social service agency that is providing services to the incapacitated person may file a Guardianship action; in proceedings for a person 60 years or older, for example, the Office of the Public Guardian for Elderly Adults (OPG) may file. Standing is considered to be the best way to ensure an incapacitated person is protected from unwarranted charges.

To begin the Guardianship proceeding, the relative/petitioner files a Complaint in the county Chancery Court, Probate Part. R. 4:86-1. The Complaint must be accompanied by two affidavits of professionals. R. 4:86-2(b). The professionals must have personally examined the alleged incapacitated person, must not be related, and concur that the person is unfit and unable to govern him or herself. A third affidavit may be required with details of the alleged incapacitated person’s assets (R. 4:82-2(a)), which will in part control the amount of bond required – if at all.

An order is also required for the filing. It sets the date for the upcoming key milestone: the hearing. In order to properly set the date of the hearing, it must be scheduled at least 20 days from service of the hearing notice on the alleged incapacitated person. That brings us to another key requirement: timely notice of the hearing must be served on the alleged incapacitated person as well as others.

The Court will also appoint counsel for the alleged incapacitated person. Court-appointed counsel represents the interests of the alleged incapacitated person, and will take on such tasks as interviewing the client, petitioner, professionals, school and perhaps others. The Court may also, with or without advice of court-appointed counsel, appoint a Guardian Ad Litem (GAL). The GAL objectively seeks to identify what is in the best interests of the alleged incapacitated person. Each party is responsible for gathering, evaluating, and reporting on essential evidence.

March 16, 2012 by Rebecca Esmi

Ongoing Guardianship obligations

Guardians have ongoing and recurring obligations to meet upon being appointed. First, there are reporting requirements. There is also a second set of obligations and considerations that arise by virtue of the human condition; Guardians, of course, are not exempt from life’s vagaries that arise during the passage of time.

As years pass after the initial proceeding, upon occasion a Guardian may become incapacitated, unable to serve, or pass away. In this event, a substitute Guardian should be added in a subsequent proceeding, and a temporary guardianship appointment may be requested during the proceeding’s pendency to minimize decision-making gaps. In the alternative, if there are co-guardians in place, the second Guardian ensures that there is no gap. The Office of the Public Guardian for Elderly Adults will step in and apply as Guardian of a person 60 years or older, if there are no other relatives able or willing to serve. Another alternative is a suitable nonprofit agency.

Guardians must also file annual reports with the county Surrogate Court. The annual report provides the Court with assurance that the Guardian is meeting all obligations and serving the Ward’s best interests.

March 16, 2012 by Rebecca Esmi

Guardianships: Planning for the future

A Guardianship provides for the Ward’s future, ensuring that decisions in his or her best interests are empowered. However, planning for the life’s vagaries should also be incorporated into the process.

To illustrate, co-guardians can be a useful option. Co-guardians can play a role in contingency planning in the event one Guardian becomes incapacitated, passes away, or is otherwise unable to serve. A substitute Guardian can be added in a subsequent proceeding, while the second Guardian provides that there is no gap or lag. Suitable nonprofits and agencies may also be a good choice for contingency planning.

March 16, 2012 by Rebecca Esmi

The Guardianship proceeding: what to expect in the hearing

First, many people worry about whether the incapacitated person will have to attend the hearing. Whenever possible, it is always best to have the alleged incapacitated person present at the hearing. N.J.S.A. 3B:12-24.1(e). However, the Court may agree that the person need not attend if it would be injurious to the individual or perhaps even others. If feasible, the professional affidavits should describe the reasons the person should not attend. The petitioner and the court-appointed attorney for the alleged incapacitated person are also required to certify as to this non-attendance.

Generally Guardianship proceedings are handled as a bench trial, or one before a single judge. Counsel may need to question witnesses on the witness stand and/or present evidence, and the Judge may have questions.

Finally, the Judge rules on the issue of incapacity, Guardianship, other items, and attorneys’ fees. It should be noted that if the Judge determines a limited Guardianship is warranted, the court will specify the limits pertaining to residential, educational, legal, financial, medical, and work-related decision-making.

March 15, 2012 by Rebecca Esmi

When is a Guardian needed?

Several scenarios most commonly call for a Guardianship proceeding including the following:

1. An individual who formerly had capacity but later became incapacitated, and the individual never appointed an attorney in fact in a durable power of attorney (for example, a person who in later years suffers from dementia, but has not executed a durable power of attorney);

2. An individual with a disability is nearing 18 years (for example, a disabled minor child is 17 l/2 years old); or

3. An individual who is a chronic abuser of drugs and/or alcohol.

Guardianship proceedings allow an appointment of a temporary Guardian, while the process is in the works. While this appointment usually lasts 45 days, an extension can be requested. A temporary appointment should be considered so as to minimize gaps in decision-making. N.J.S.A. 3B:12-24.1(c) et seq.