A guardianship for an adult may be granted by the Superior Court of New Jersey when a person's condition is such that the person is unable to effectively manage his or her affairs.  The Court will then issue a judgment determining that such person is incapacitated, and will appoint a guardian. 

        It is possible for the Court to appoint a "guardian of the estate" solely for the management of an incapacitated person's financial matters.  In such case, the person will still be free to make his or her own decisions regarding medical and other personal matters.

        It is also possible for the Court to appoint a "guardian of the person" who has decision-making authority over medical matters and other personal matters, such as where the incapacitated person will live.  A guardian who is only "guardian of the person" has no authority over financial matters.

        In some situations the Court will appoint one person as guardian of the estate, and another person as guardian of the person.  Most commonly, a guardian is appointed who has authority over both the person and the estate.

        Once a person is disabled, a power of attorney can not be signed to appoint another person to manage business and financial affairs, because the disabled person does not even have the ability to knowingly execute the power of attorney document.  However, a power of attorney document which was signed prior to the disability will be effective to allow someone else to manage business and financial affairs, so long as the document contains a statement saying "This Power of Attorney shall be effective regardless of any disability I may suffer in the future", or similarly.

        A guardianship proceeding is treated very seriously by the Court because once a judgment of disability is entered, the person will lose substantially all of their rights to make their own decisions.  The Court system is also very concerned for the well-being of disabled persons.

        When a guardianship action is filed in the Superior Court, it ordinarily must be accompanied by affidavits from each of two physicians providing a professional medical opinion that the person in question is disabled, and also providing other required information regarding the alleged incapacitated person.

        Once the guardianship matter is filed, the Judge hearing the case will appoint an attorney of the Judge's own choosing to represent the alleged incapacitated person.  This attorney is required to meet with the person and conduct an investigation.

        The attorney for the alleged incapacitated person is required to then submit a written report to the Court, with a copy to the persons who initiated the guardianship action.  If the alleged incapacitated person wishes to oppose the guardianship, then the Court-appointed attorney will have the obligation to contest the matter in Court, and to be an advocate for the actual wishes of the alleged incapacitated person.

        Ultimately there will be a hearing with the taking of testimony.  The Judge may hear the in-person testimony of the physicians, or the Judge may rely on the written affidavits signed by the physicians.  If the matter is contested, the matter will ultimately go to trial.

        Sometimes there is no question of whether the person is incapacitated, but there is an issue as to who will be appointed by the Court as the guardian.  It will then be the responsibility of the Judge hearing the case to decide who will be the guardian.

        If there is a judgment of incapacity entered, the Judge will ordinarily award attorney's fees to the attorney for the petitioner to be paid out of the assets of the incapacitated person.  The Court will also order an attorney's fee to be paid to the Court-appointed attorney from the person's assets, if such assets are available.

        The Judge will sign a judgment declaring the person to be incapacitated and stating who shall be guardian.  That judgment will ordinarily contain certain requirements as to the information which must be provided on a periodic basis by the guardian to the Surrogate's Court.

        Upon the death of the incapacitated person, who ever is the executor, administrator or beneficiary of the estate of the deceased person will have a right to obtain an accounting from the guardian as to the management of the finances of the incapacitated person.

Guardianships for
Elderly or
Incapacitated Adults