Guardianship Detailed Information

Guardianship in NJ

What is a guardian: A person appointed by a court that acts on behalf of a person to ensure that the person’s health, safety and welfare needs are met and that his or her rights are protected. The duties of a guardian also include making decisions on behalf of the individual and giving informed consent.

When should guardianship be considered: At age 18, every person, regardless of disability, is considered an adult. Parents may no longer make any decisions on behalf of their children. An individual may need a guardian if the individual cannot give informed consent concerning significant matters.

What is informed consent: Informed consent means the individual can agree for something to occur or not occur and fully understand the consequences and risks associated with that decision.

Types of guardianship:

  1. Guardianship of the person:
    • General guardianship is typically for individuals who have been found incapable of making or expressing any decisions. Gives guardian full responsibility.
    • Limited guardianship allows the individual to retain the right to make certain decisions to increase autonomy while providing protection from harm. It may be appropriate if an individual can give informed consent in some areas but not others.
  2. Guardianship of the property - Only necessary if the individual has assets in his or her name. A guardian can be appointed guardian of the person, property or both.

Many individuals are capable of making their own decisions, with appropriate support and advice, and do not need a guardian.

Alternative to guardianship:

  1. Power of Attorney (POAs)- Grants someone the right to make decisions on behalf of another person. Can cover the person and/or property. The individual must be able to understand and consent to the fact that he or she is appointing someone to make decisions on his or her behalf.

    Benefits of POAs:

    • Provides more autonomy than guardianship
    • Can be revoked and/or changed at any time, based on changing needs
    • Costs significantly less than guardianship
    • It is best to work through an attorney to establish POA

    Types of POAs:

    General: Allows the parent or other appointed person to make or help make financial decisions.

    Health Care: Allows the parent or other appointed person to make or help make decisions regarding healthcare or medical treatment.

  2. Supported Decision Making - Allows individuals to retain their right to make decisions by choosing supporters to help them make choices. The individual typically uses friends, family members or professionals to serve as supporters. The supporters help the person with a disability understand, consider and communicate decisions, giving the person with a disability the tools to make his or her own informed decisions.

How to complete the Guardianship process:

  1. Do it Yourself - Speak to other parents

    Application for guardianship of the person only:

    Application for guardianship of the person and their estate:

  2. Get Assistance from a nonprofit - There is a fee for this service but it should be less costly than hiring an attorney.

    SCARC Guardianship Services -Supports families in Sussex, Hudson, Morris, Passaic and Warren counties.

    Guardian Assistance Services

  3. Attorney-assisted: Hire an attorney experienced in guardianship cases.

  4. The Bureau of Guardianship Services: The wait for assistance tends to be very lengthy.

What happens after the application is submitted:

  • A psychological evaluation of the person for whom guardianship is sought is conducted.
  • The court will assign a representative from the Department of the Public Advocate to represent the individual in the court’s action.
  • If the representative agrees with the application based on interviews with the individual, then no hearing needs to happen to establish guardianship.
  • If there is no agreement, then a hearing will be held where both sides can argue their positions and a judge will make a ruling about guardianship.

How long does guardianship last: Guardianship never expires but the guardian does need to file a report annually with certain information. If guardianship becomes no longer necessary, it can be removed by the court.