Guardianship

Making supportive decisions for your loved ones

Watching a parent or loved one lose the ability to care for themselves is challenging. Shifting your role to the caretaker is not only emotionally difficult but also legally complex.

At Goldberg Law Group, our guardianship legal team has extensive experience in working with families to form a compassionate safety net for a loved one who is no longer independent.

We understand that this process is complicated for many reasons and we’ll work with you to find solutions that are right for your family.

If you have questions about guardianship, contact us. We offer a free consultation to help you determine what makes sense for your next step. We believe that knowledge is power and aim to help you be as informed as possible, whether or not you choose to work with us.

What is a Guardianship?

A guardianship is a legal process whereby an individual is appointed by the Court to act for an individual who is unable to care for themselves or manage their affairs.

A guardian is appointed by the Court to make decisions for an incapacitated individual regarding general health, welfare, safety, and financial well-being.

Guardianship duties include:

Making financial and medical decisions
Deciding where the person will live
Caring for their home, clothing, furniture, vehicles, etc.
Providing care, comfort, and general support for their well-being

A guardianship and conservatorship are technically two separate roles, but they’re often performed by the same person. Someone who can assist with personal and medical decisions is known as a guardian, and a conservator is someone who helps with finances.

At Goldberg Law Group, our guardianship attorneys work with clients to protect loved ones through the guardianship process. We also work with clients to remove existing guardians or conservators, if necessary.

Why A Guardianship?

A guardianship is necessary when there are no financial or health care Powers of Attorney in place and a person lacks the capacity to sign any documents appointing someone to act on their behalf.

Without a Power of Attorney or Guardianship appointment, you don’t have the authority to act on another’s behalf.

The legal team at Goldberg Law Group understands the difficulty of seeing a loved one lose their independence—and the impulse to take care of them.

In New Jersey, the legal ground for pursuing guardianship is presumed incompetence. An incapacitated person is
unable to take care of their physical well-being and affairs. The Court determines whether one is deemed incompetent.

A guardianship isn’t taken lightly by the courts as it is a determination that one no longer has the freedom to make their own decisions.

For example, an incapacitated person may be convinced they’re unable to pay their bills due to insufficient money in the bank and therefore not pay those bills, even though they have the funds to do so.

At Goldberg Law Group, we provide direct, candid consultation services so that you can make an informed choice about how to proceed in caring for your loved one.

Guardianship Process

When applying for guardianship, the proposed guardian must receive two separate evaluations of the alleged incapacitated person (AIP). These evaluations must be completed by either two medical doctors or a medical doctor and a psychologist.

The doctors meet with the AIP, complete a certification, and report to the court on their medical opinion as to whether the individual has capacity.

The guardianship application process is time-sensitive. These evaluations must be completed within thirty days of filing. For this reason, we highly recommend working with someone who has experience in this area.

We encourage you to ask questions to ensure that the team you’re working with can guide you through the guardianship process in an expeditious manner that supports the well-being of your loved one. Knowledge is power!

Protections for the AIP

After you’ve filed the required paperwork with the Court, including the reports from medical doctors (or a doctor and psychologist), you’ll be given a hearing date and the Court will appoint an attorney for the alleged incapacitated person (AIP).

The Court Appointed Attorney’s (CAA’s) job is to advocate for the best interests of your loved one.

The CAA meets with the AIP and prepares a report of their findings. Typically, the CAA will meet with or interview friends and family of the AIP as part of this process. The CAA’s responsibilities include determining if the prospective guardian is the appropriate person to act on your loved one’s behalf.

While it may be challenging and even destabilizing to have someone you don’t know question your right to care for your parent or loved one, understand that the process is designed to protect the person you love.

Every person has a right to counsel.

Guardian Training

Before one can be appointed guardian, one must complete guardianship training. This is designed to protect the AIP and helps ensure the guardian is fully informed of their rights and responsibilities.

At present, guardian training requires one to review a training video and manuals provided by the court.

This training covers:

The annual reports guardians must file
The guardian’s duties and responsibilities

In general, if it’s determined that the AIP is incapacitated to the point of needing a guardian, the Court will determine the level of need and whether or not the proposed guardian is an appropriate choice.

When reasonable, the Court prefers to award guardianship to those with a pre-existing relationship to the AIP—such as adult children, spouses, or other family members—as these people know the AIP’s specific preferences and needs.

It’s also possible to appoint co-guardians if two people wish to share the duties and responsibilities of guardianship for the AIP.

Work with a Guardianship Attorney

The team at Goldberg Law Group is comprised of attorneys and former caregivers.

We take the responsibility of caring for our most vulnerable population very seriously, and we pride ourselves on working with families to find solutions that fit their specific needs.

If you have questions about protecting a loved one through guardianship or conservatorship or have concerns about removing an existing guardian, contact us today to schedule a free consultation.

FAQs

How do I know when my loved one needs a guardian?

Again, your loved one may still have the capacity to sign a Power of Attorney at that point.

We want to stress that knowing when a guardian is needed will vary immensely according to the individual situation. These examples may help paint a picture, but often the shift is gradual.

There’s no easy answer as to when your loved one needs a legal guardian. Every situation is different. It’s important to note that a simple Power of Attorney will prevent the long and arduous guardianship process. Planning for the future with an elder law or estate planning attorney is always better.

If you need to act for your loved one to prevent their power from being turned off, then you might consider applying for guardianship.

What Is the Difference between Powers of Attorney and Guardianship?

Both guardianship and Powers of Attorney (POA) grant an individual the ability to make financial, legal, and/or medical decisions for another.

Unfortunately, sometimes even individuals with a Power of Attorney may need a guardian. Poorly drafted Powers of Attorney, deceased or incapacitated agents, or a combative loved one (due to dementia or psychiatric issues) may necessitate guardianship.

For most people, a POA is sufficient. It’s important to remember the documents must be executed while one still has capacity.