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A guardianship and a conservatorship are both ways to care for adults who cannot care for themselves or handle their own financial matters. When someone agrees to a guardianship or conservatorship arrangement, it is much easier to get approved by the courts.
However, it is possible to get guardianship or conservatorship approved even without the subject’s consent. There are a variety of legal complexities involved in these cases, including proving that the individual needs a guardian or conservator.
Our family law attorneys at Rosenblum Law have experience in seeking guardianships and conservatorships. Contact us today for a free consultation, and keep reading for more information about these two options for caring for loved ones.
What Are Guardianship and Conservatorship?
A guardianship is when someone takes responsibility for caring for a child or incapacitated adult. There are both general and limited guardianships in New Jersey. A general guardian can make all decisions for the incapacitated person. A limited guardian can only make specific decisions for the incapacitated person, as ordered by the court.
A conservatorship is similar to a guardianship, in that someone takes responsibility for managing certain areas of an incapacitated person’s life. However, conservatorships are generally much more limited.
A conservator of the person allows the conservator to make decisions about the individual’s health and daily life. A conservator for the estate is much more common and allows the conservator to handle financial matters for the incapacitated person.
There are a variety of circumstances that could make a guardian or conservator necessary. These include:
- A minor who needs to be cared for
- Someone incapacitated by mental illness
- Someone with an intellectual disability
- Someone with a physical illness or disability
- Someone with chronic drug use or alcoholism
- An aging parent unable to care for themselves
Guardians and conservators have a range of responsibilities depending on the type of guardianship or conservatorship. Guardians and conservators of estate are required to make reports to the court as to the finances of the incapacitated person. Guardians and conservators of a person must also make periodic reports as to the condition of the person and their continued incapacity.
Aside from these court-ordered reports, a guardian or conservator of the estate has responsibilities to the incapacitated person. In particular:
- They must manage the incapacitated person’s finances carefully.
- They are not allowed to have personal gain from doing so.
- They must post a bond to cover any potential wrongdoing that might happen in the course of the guardianship or conservatorship.
In addition, both guardians and conservators of estate can be sued for misrepresenting or misappropriating finances of an incapacitated person.
Legal Process in Guardianship and Conservatorship Cases
While there are a number of legal complexities in gaining guardianship or conservatorship, the process is fairly simple.
- File a petition for guardianship or conservatorship: There are specific forms that must be filed and a filing fee.
- Serve notice to interested parties: This includes the incapacitated person and any others who may have an interest in becoming guardian or conservator.
- Court investigation and evaluation: The court will investigate whether or not the person is truly incapacitated and evaluate what type of guardianship or conservatorship may be appropriate.
- Attend the court hearings: During the hearings, it may be necessary to present evidence regarding how and why the person is incapacitated. Testimonies from people such as medical professionals and people who know the proposed guardian or conservator may be necessary.
- Wait for the court’s decision: The court could approve or deny the petition for guardianship or conservatorship. It is possible the courts could appoint someone other than the individual who filed the petition. The person requesting guardianship or conservatorship should not assume any of the responsibilities they are requesting until the court makes a decision about the request.
- Cooperate with ongoing court supervision and reporting requirements: Typically, annual reports about the state of the incapacitated person are required, although the court can order more frequent reporting if it deems it necessary. Financial reporting as well as reporting about the condition of the incapacitated person are required.
Key Considerations for Clients
It is important to understand the responsibilities and limitations of guardianship or conservatorship before taking on the role. Guardians have a responsibility to ensure that the incapacitated person’s needs are met, including care needs, health needs, and financial management. Conservators of the estate have a responsibility to maintain the incapacitated person’s estate and financial circumstances in the best interests of the individual.
Conservatorships are often limited by court order, and the court will ultimately decide the responsibilities and limitations of conservators. However, even guardianships are limited. For example, one cannot place the incapacitated person in an institution or nursing home without a court order.
It is also important to choose the right guardian or conservator — someone who has the time and ability to care for the incapacitated person. It should ultimately be someone the person trusts and feels comfortable with, and it should be someone who can pass the required background checks.
At times, families can disagree on who should be guardian or conservator. Addressing family disputes and challenges should be done with compassion. Negotiations, mediation, and other alternative dispute resolution methods can be used to resolve these conflicts and settle on a suitable guardian or conservator.
How a Guardian/Conservatorship Attorney Can Help
As outlined above, there are many considerations and legal steps involved in guardianship and conservatorship cases. While it is possible for someone to represent themselves in a guardianship or conservatorship case, it is highly recommended that they hire an attorney. The attorney can help in many ways.
Initial Consultation and Case Evaluation
During the initial consultation and case evaluation, the attorney can help assess the need for guardianship or conservatorship, and make a recommendation as to which is best for the specific individual. An attorney will advise on the best legal options and potential outcomes.
It is possible that the attorney may find that a power of attorney would best meet the needs of the parties rather than a guardianship or conservatorship. They can help with this as well.
Preparation of Legal Documentation
The attorney can draft and file petitions for guardianship or conservatorship. There are specific forms that must be accurately completed and filed for both.
Once this is done, the attorney will work on gathering and presenting necessary evidence and documentation. This could include medical reports, expert witnesses, and other documentation.
Representation in Court
One of the most important ways an attorney can assist is by representing the potential guardian or conservator in court. They will present evidence that demonstrates why the incapacitated individual needs a guardian or conservator. They will also argue for the appointment of a guardian or conservator based on the best interests of the individual.
Ongoing Legal Assistance
Getting guardianship or conservatorship is not the end of the journey, as annual reporting for finances and showing that the person remains incapacitated are necessary. The attorney can handle this for the guardian or conservator.
If disputes arise or changes in guardianship or conservatorship are needed, the attorney can assist by representing the guardian or conservator in civil court or facilitating the changes.
Termination of Guardianship/Conservatorship
Some guardianships or conservatorships do not need to last indefinitely. The attorney can file for termination or modification of these when necessary.
Moreover, if there is a change in the guardian or conservator, the attorney can ensure there is a proper transfer of responsibilities.
FAQs
A guardianship and conservatorship are very similar, but conservatorship is often more limited in scope and frequently only involves matters of an estate. A guardianship typically gives more powers so that the guardian can properly care for an incapacitated person or minor. Guardians are responsible for the daily care, health, and finances of the person, while conservators are generally only involved in finances, although there is a less common exception to this known as the conservator of the person.
You should consider seeking a guardianship or conservatorship when a loved one has become too incapacitated to handle their own affairs. A guardianship should be sought when the incapacitated person needs help managing their health, finances, and wellbeing. When only finances need to be managed, a conservatorship may be more appropriate.
If your loved one needs daily care, help keeping medical appointments, and help managing their finances, a guardianship is more appropriate. If the loved one only needs assistance managing their finances, a conservatorship is more appropriate. However, it’s important to understand that an attorney is best equipped to effectively assist individuals in deciding their best option.
Both guardians and conservators have a legal responsibility to act in the incapacitated person’s best interests. Guardians have legal responsibilities to maintain the health and safety of the person. Both guardians and conservators have legal responsibilities to handle the finances and estate of the person responsibly and ensure their bills are paid. Conservators may have other legal responsibilities that will be laid out in the court order. Both guardians and conservators have a responsibility to participate in ongoing court supervision and annual reporting.
A guardian/conservatorship can draft and file the petition for guardianship or conservatorship, as well as gather evidence and documentation required to prove that such is needed. They can also present this evidence and related arguments in court. After a guardian/conservator is appointed, the attorney can assist with court supervision and reporting requirements.
The process for appointing a guardian or conservator in New Jersey begins with filing a petition with the state superior court in the county in which you live. Before a hearing is scheduled, the court will do their own investigation and evaluation as to whether a guardian or conservator is needed and the suitability of the person who filed the petition. During the hearing, one must present evidence and documentation that a guardian or conservator is needed.
Guardianship or conservatorship can be contested by the incapacitated individual or other interested parties. If the individual claimed to be incapacitated does not want a guardian or conservator, he or she can file an Answer with the courts using their own attorney. The individual who is assigned a conservator can file to have the conservator dismissed with the courts.
The time it takes to go through the guardianship or conservatorship process can vary, but it typically takes about eight to 12 months.
Yes, upon petition by either the guardian/conservator or the individual who is the subject of the guardianship or conservatorship, a guardianship or conservatorship can be terminated or modified.
Resources and Support for Affected Families
Legal Resources
- Rosenblum Law: Rosenblum Law has experienced attorneys in guardianship and conservatorship. Located at 777 Passaic Ave Suite #460, Clifton, NJ 07012, Rosenblum Law offers free consultations and case evaluations.
- Department of Human Services Bureau of Guardianship Services: This office is responsible for processing and tracking guardianship applications for those served by the Division of Developmental Disabilities.
Relevant Legal Statutes and Regulations
- Section 3B:12-24.1 details how guardians are appointed and how it is determined that one needs a guardian.
- Guide to Guardianship Reporting Forms: This guide explains the reporting requirements, necessary forms, and other important information for guardians.
- Guardianship Terms and Procedures: This guide defines the terms and the responsibilities of the guardian.
- Section 3B:13A-23:This law details how conservators are appointed, their reporting requirements, and other terms of conservatorships.
Support Groups and Counseling Services
- Guardianship Support/Guardianship Monitoring Program: The New Jersey Judiciary offers this resource to help guardians understand the responsibilities and limitations of guardianship.
- NJ Kinship Connections: A support group for guardians of minors and special needs children.
- Kin Konnect.org: This organization provides online support groups for families and adults caring for those with mental health conditions.
Contact Rosenblum Law Today
As you can see, the process to obtain a guardianship or conservatorship is complex and requires the attention of an attorney. It is important to have legal representation in guardianship and conservatorship cases to ensure that the process goes smoothly. Navigating the legal challenges and protecting the best interests of the individual is best done by hiring an experienced attorney.
Rosenblum Law guardian/conservatorship attorneys are experienced in New Jersey law and can effectively facilitate either of these processes. Contact us today for a free consultation and case evaluation.
Last updated: Aug 20, 2024
