by: Begley Law Group

By: Ethan J. Ordog, Esquire


Guardianship is a protective arrangement established through the Superior Court in New Jersey on behalf of a mentally incapacitated person.  While guardianship proceedings are often associated with adults suffering from dementia or the effects of aging, a parent of a developmentally disabled child is often faced with the realization that it may be necessary to initiate proceedings to ensure that his or her child is protected.  Specifically, as the medical community is better able to assess and diagnose those conditions afflicting individuals, it is imperative to make sure that a parent or loved one is able to speak with medical personnel, make decisions in the best interest of the individual, and assist the individual with his or her needs.  A guardianship may be established for a developmentally disabled child upon attaining the age of eighteen (18) if he or she does not possess the requisite capacity to manage his or her own affairs.

Under N.J.S.A. 3B:1-2, an incapacitated person is, “an individual who is impaired by reason of mental illness or mental deficiency to the extent that he lacks sufficient capacity to govern himself and manage his affairs.”  The statute also includes in the definition of an incapacitated person, “an individual who is impaired by reason of physical illness or disability…to the extent that he lacks sufficient capacity to govern himself or manage his affairs.”


In order to become a guardian of the person and/or estate of an alleged incapacitated individual, a petition must be filed with the Superior Court, in the county in which a mentally incapacitated person is domiciled.  A hearing is scheduled with the judge who presides over the probate division.  Specifically, the petitioner must file an order for a hearing, a verified complaint, and an affidavit as to the alleged incapacitated person’s estate.  The complaint itself must contain a variety of information including the health and limitations of the alleged incapacitated individual, as well as an overview of the circumstances which require the establishment of a guardianship.  Additionally, such a filing requires the inclusion of two certifications from physicians who have examined the alleged incapacitated individual, no more than 30 days prior to the filing of the complaint.  Further, the petitioner is also required to submit an affidavit as to the estate of the alleged incapacitated individual, which details the income, assets, and liabilities of the individual.


Upon receipt of the filing, the judge responsible for hearing such matters establishes a hearing date and appoints an independent attorney to represent the interests of the alleged incapacitated individual.  The court-appointed attorney visits with the alleged incapacitated individual to determine whether or not he or she is indeed incapacitated, whether the proposed guardian is suitable, and whether the client would like any reasonable wishes articulated relating to the guardianship.  Typically, prior to filing a report with the court, the court-appointed attorney meets with other family members and interested parties to discuss the filed application.  Ultimately, a hearing, which may or may not require the appearances of counsel and/or the proposed guardian(s), is held, and a judgment is executed by the court which details the incapacitation and any limitations and/or rights reserved to the individual.


After a guardianship has been granted, the appointed guardian is required to execute qualification documentation with the Surrogate of the county in which the proceedings were filed.  Letters of guardianship are then issued to the guardian(s).  In most cases, the guardian will need to acquire a surety bond which insures against potential mismanagement or abuse of the incapacitated person’s assets.


The individual appointed as guardian must act in the best interests of the ward. Specifically, the New Jersey Supreme Court, in In re Conroy, 98 NJ 321, 365 (1985), stated that “the goal of decision making for incompetent patients should be to determine and effectuate, insofar as possible, the decision that the patient would have made if competent”.  Under the “best interest” standard, the guardian simply does what he or she believes in the best interest of the incapacitated individual.  In the absence of clear direction, the guardian is expected to act as a reasonable person would under the circumstances.

Additionally, guardians should be proactive in the overall management of those matters pertaining to the individual, including scheduling and monitoring medical appointments and ensuring that the ward is receiving benefits to which he or she is entitled.


Following the appointment, a guardian is required to file an inventory of the incapacitated person’s assets, as well as an annual report, submitted to the Surrogate’s office on each anniversary of the establishment of the guardianship.   The responsibilities of the guardian of the person include determining where the incapacitated individual will reside, and determining how personal and medical care, meals, transportation, socialization, and recreation will be provided.  The guardian of the property, which includes both real and personal property, is responsible for determining the extent of, and taking control of, such assets, and ensuring that funds are received and directed as necessary for the benefit of the ward.  It is necessary for the guardian of the property to establish a budget consistent with the assets and monthly income of the incapacitated person to ensure that bills and other related expenses are paid.


While it is often preferable to allow a disabled

child to remain in his or her present residential setting as long as he or she is physically able, a guardian must consider and determine the feasibility of the living arrangement, based upon physical, mental, or financial considerations.  In determining appropriate alternatives, it is essential for the guardian to determine what benefits or possible assistance are available to help cover the costs of such placement.  Moreover, even if an individual requires a placement in a residential community, it remains the guardian’s responsibility to ensure that the incapacitated person’s needs are met and that he or she is receiving the appropriate level of care.

Authority is conferred upon the guardian to make decisions concerning the incapacitated person’s medical treatment, although some simple decisions may be made by the incapacitated person.  It is important to make decisions based upon medical advice/information, as well as the previously-stated wishes of the incapacitated person, if known.  Additionally, it is important to ensure that health care providers are given health insurance information, including but not limited to, Medicare, Medicaid, and other private policy coverage.


The guardian of the incapacitated person’s real and personal property must identify the individual’s assets, including bank accounts, stocks, bonds, life insurance policies, real estate, business interests, and vehicles, as well as monthly income and/or payments from the government, pension plans, insurance, and other sources of income.  Typically, it is necessary to open a guardianship account for the deposit of such funds and to take control of any existing accounts.  Additionally, it is imperative to maintain detailed records of expenditures so that such information is readily available for the preparation of any required accountings.  Further, the law requires that those assets attributable to the incapacitated person remain separate from those of the guardian.  A guardian should be aware that if the incapacitated person becomes eligible for such programs as Medicaid, SSI, or municipal welfare, a review may be conducted to ensure that all assets were expended for the benefit of the incapacitated person.  Therefore, it is important to maintain accurate and up-to-date records, including receipts of the expenditure of such funds and/or the disposition of any assets.


The process of appointing a guardian ensures the protection of a developmentally disabled individual by providing a parent or loved one with access to information and by enabling these individuals to make decisions in the best interest of the incapacitated individual.  While parents are often knowledgeable and active in their child’s life, it is imperative to ensure that once a developmentally disabled individual reaches the age of 18, his or her parents or loved ones will still be in a legal position of authority to act on his or her behalf and to maximize the opportunities available to the incapacitated individual.

Begley Law Group, P.C. has served the Southern New Jersey and Philadelphia area as a life-planning firm for over 85 years.  Our attorneys have expertise in the areas of personal injury settlement consulting, special needs planning, Medicaid planning, estate planning, estate & trust administration, guardianship, and estate & trust litigation.  Contact us today to begin the conversation.