Guardianship & Conservatorship

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Understanding the New Jersey Guardianship Process

Our Certified Elder Law lawyers view guardianship as a last resort, when no other alternative, due to Alzheimer's, dementia, Parkinson's or other mental deficiencies, is available. Rushing someone into guardianship without their cooperation can make the process very 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. N.J. is a recognized leader among states in "modernizing" guardianship concepts to be less restrictive such as limited guardianships. You can avoid the need for guardianship with a properly drafted durable power of attorney document while competent.

For more than 43 years, McHugh & Macri have provided help and guidance to clients who serve 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 alleged 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 $8000.

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 has a power of attorney is answerable to the person who gave it to him or her, a guardian is answerable to the court. Thus, the AIP loses control over their care choices and finances.

Guardianship and Conservatorship

There are two duties of guardians in New Jersey: Guardian of the person and guardian of the property. The guardian of the person handles all care planning and other non‑financial 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 their 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, they can voluntarily choose to have a conservator handle financial affairs.

Don McHugh and Vince Macri are 2 of only 450 attorneys nationwide who are certified in elder law (CELA) by the National Elder Law Foundation.

Free Lawyer Consultation

For a free initial consultation with one of our CELA partners, call 973-887-4254 or fill out the "Fee Free" contact form on this Web site.