Disabilities and Elder Law

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.

March 15, 2012 by Rebecca Esmi

Timing is everything: special considerations in Guardianship proceedings

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.

March 15, 2012 by Rebecca Esmi

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

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.