Understanding Guardianship And Conservatorship

Our certified elder law lawyers view guardianship as a last resort, when, due to Alzheimer's, dementia, Parkinson's or other mental deficiencies, no other alternative is available. Rushing someone into guardianship without that person's cooperation can make the process difficult and complex as well as pit child against parent and/or other siblings. In New Jersey, the sole legal ground for seeking guardianship over another person is incapacity. Previously, the statute used the word "incompetency." Changing the term to incapacity was a conscious effort by legislators to make the guardianship concept less derogatory and demeaning. New Jersey is a recognized leader among states in modernizing guardianship concepts to be less restrictive. Part of this effort led to the introduction of limited guardianships.

It is possible to avoid the need for guardianship by establishing power of attorney while competent.

For more than 44 years, McHugh & Macri in East Hanover has provided help and guidance to clients who serve as or need caretakers or guardians for a spouse or family member.

A Time-Consuming And Expensive Process

In New Jersey, you will need three lawyers for a guardianship proceeding: a court-appointed one for the allegedly incapacitated person (AIP), one for the person seeking guardianship and a personal one for the AIP. The estate of the AIP pays for the costs of all three attorneys as well as court costs. The process of obtaining a guardianship can take months and easily exceed $8,000.

Guardianship is the only alternative if the AIP does not have the legal capacity to designate a power of attorney or if the AIP revoked a prior power of attorney. While a person who serves as power of attorney is answerable to the person who appointed him or her, a guardian is answerable to the court. Thus, the AIP loses control over his or her own care choices and finances.

Guardianship And Conservatorship

There are two types of guardianship in New Jersey: guardian of the person and guardian of the property. The guardian of the person handles all care planning and other nonfinancial decisions. The guardian of the property handles financial matters. While one person usually serves as both, different people for each role may be appointed. Increasingly, our firm represents clients seeking a limited guardianship or conservatorship, where the elder or disabled party has the capacity to make his or her own care decisions, but needs an overseer to assist with financial affairs.

In some states, the term conservator and guardian are the same. In New Jersey, if a person is not incapacitated, he or she can voluntarily choose to have a conservator handle financial affairs.

Don McHugh and Vince Macri are two of only 450 attorneys nationwide who are certified in elder law (CELA) by the National Elder Law Foundation.

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For a free initial consultation with one of our CELA partners, call 973-577-6010 or fill out the fee-free contact form on this website.