Guardianship

There come times where an individual is no longer able to handle his or her own financial transactions or health care decisions.  If proper estate planning has occurred there will be a seamless transition so that an attorney-in-fact under a Financial Power of Attorney and a healthcare representative under an Advance Medical Directive/Living Will/Healthcare Power of Attorney are able to step in and take appropriate actions on behalf of the individual.  Unfortunately, a majority of people do not take the time or spend the money on preparing a proper estate plan. When an individual does not have estate planning documents in place and becomes unable to make his or her own financial and medical decisions, a guardianship proceeding may be necessary.

A guardianship is a court proceeding in which a guardian is appointed by a court to make financial decision, medical decisions, or both for “an incapacitated individual.”  The court proceeding requires the filing of a complaint, certifications from medical practitioners, the appointment of an attorney and possibly a temporary guardian on behalf of the individual, and ultimately a hearing by the Court which may involve testimony.  Once a guardian is appointed, the guardian may have to obtain a surety bond the value of which is determined by the Court.  The guardian has on going reporting responsibilities; in New Jersey, this involves the filing an annual report with the county Surrogate’s office.