Frequently Asked Questions...
The following are responses to frequently asked questions concerning guardianship. If you have additional questions that have not been adequately addressed, please contact us for our free “What is Guardianship” pamphlet by clicking on the black circle located at the top of this page.
Q: How do I obtain guardianship for an adult (someone over the age of 18)?
A: Legal guardianship over an adult is obtained through the court system upon a showing that the adult person in question is unable and unfit to manage his or her own affairs.
Q: Why does guardianship involve the court system? Why can’t the doctor simply write a note saying that the adult person in question is incapacitated?
A: First, all adults are presumed competent under the law, regardless of our disabilities. Second, guardianship is a serious legal proceeding that involves divesting a person of their autonomy and decision making authority and assigning that responsibility to another person. A guardianship action is essentially asking the court to rebut the presumption that an adult is competent and to declare that person incapacitated. In New Jersey, only a Superior Court Judge, relying on medical evidence, has the legal authority to make this determination.
Q: But isn’t the determination of whether a person is or is not competent a medical question?
A: Yes, to a large extent it is a medical question. However, it is also a legal question as well and only a Superior Court Judge has the legal authority to determine if the medical opinions are sufficient enough to declare a person incapacitated?
Q: What is the role of the doctors in a guardianship proceeding?
A: Under New Jersey law, in order to obtain guardianship over another adult, you need two doctors to certify that the adult person is unable and unfit to manage his or her own affairs due to an existing medical condition. A showing of irrational behavior or poor judgment alone does not meet this standard. Many adults make poor or harmful decisions but do not have an underlying medical condition causing the poor decision making.
Q: Are all guardianships the same?
A: No. Under New Jersey law, a guardianship can be all encompassing (known as a full or plenary guardianship) or it can be partial or limited (known as a limited guardianship).
Q: What are my responsibilities as a guardian?
A: As a guardian, you are considered a fiduciary under the law which means that you must act in the best interest of the person for whom you are guardian and with undivided loyalty to the interests of that person. Among other things, you must attend to the person’s medical, personal and financial interests and account for your actions and you must avoid conflicts of interest.
Q: What if I can no longer serve as guardian. Can a successor guardian be appointed to take my place?
A: Yes, if the named guardian is no longer able to serve as guardian, an application can be made to the court to have the guardian discharged and have a new guardian appointed. tis is why it is important for a guardian to keep good and accurate records of their actions and the status of their ward.
Q: If I am someone’s guardian, does that mean I am also their caregiver as well?
A: No, being a guardian does not mean you are also that person’s caregiver, though it is possible you may be both. A guardian is responsible for putting into place a plan of care employing available resources.
Q: What does the term “ward” mean?
A: Once a person is declared to be incapacitated by the court, they are referred to as a “ward.” e term “ward” is simply the legal term given to an adult who is under guardianship.
Q: What are the responsibilities of a volunteer guardian?
A: The responsibilities of a volunteer guardian are the same as those of a family member guardian. A guardian is considered a fiduciary and must make decisions about a person’s welfare that are consistent with the person’s wishes and in their best interest. Such decisions can range from managing a person’s finances, to deciding where they should live, to making end of life medical decisions.
Q: What qualifies a person to become a volunteer guardian?
A: The most important qualification is your ability to care and your willingness to make a meaningful difference in the life of another person in need. tere are no education or prior work requirements for becoming a Volunteer Guardian; however, people who volunteer through our organization receive high quality education through our Center for Guardianship Studies about what it means to be a guardian and how to function in that important fiduciary role, all at no cost to the volunteer. You will also be supported by our network of professionals in the legal, medical, financial and social services fields who stand ready and willing to help guide you in the decision making process. In a phrase, you will never be let alone!.
If you have additional questions, please contact us or request our free “What is Guardianship” pamphlet that explains in more detail the guardianship process in New Jersey. Just click on the black circle located at the top of this page.