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Conservatorship and Guardianship

Physical or mental incapacity could require that a person be placed under a guardianship. Someone who remains competent to make decisions has the option of choosing a conservator

Understand the Differences Between Guardianship and Conservatorship

New Jersey law recognizes that people sometimes lack or lose the physical or mental capacity to attend to their personal or financial affairs. When you have a family member facing difficulties due to aging, developmental disabilities, sickness or serious injury, you might need the legal authority to step in and manage some or all aspects of his or her life. Guardianship or conservatorship could solve these challenges and protect a person from being overwhelmed by personal responsibilities or exploitation.

Guardians and conservators are two distinct positions. Both require interacting with a court. Guardianship in New Jersey takes place when a court appoints one or more parties to make decisions and manage the affairs of an incapacitated person, who will become known as the ward. A psychiatrist, psychologist or physician must provide documentation that demonstrates an individual’s incapacity.

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Conservatorship involves the direct wishes of the person who will become the conservatee. The person, while competent to make decisions, chooses a conservator and authorizes that individual to control his or her finances and property. The conservatee retains the legal ability to change or revoke the assignment of a conservator.

A consultation with a Middlesex County estate planning attorney could provide important insights about your options for helping a person close to you who is struggling to make decisions.

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When Can Guardianship Be Pursued?

Your concern about a family member’s health or mental state will need to meet legal standards before a court appoints a guardian for a senior citizen, disabled person or minor who lacks adult family members. A court will consider the person’s ability to understand information and make decisions. An individual’s incapacity could be caused by:

  • Physical or mental disability
  • Disease
  • Alcohol or drug addiction
  • Minor status

Types of Guardianship

State law breaks guardianship into general and limited guardianship. Under general guardianship, the ward lacks the ability to express his or her desires or make decisions. This form of guardianship for a fully incapacitated person is also sometimes referred to as plenary guardianship, and it grants a guardian the authority to take care of an individual’s:

  • Medical care
  • Food, clothing and personal items
  • Education
  • Bank accounts and other finances

A limited guardianship may be appropriate for someone who has some ability to articulate his or her needs and make decisions but requires assistance in other areas of his or her life. A court will determine the specific extent of the limited guardian’s authority.

A New Jersey probate lawyer could provide additional information about which type of guardianship might be necessary in your case.

Removal of Guardianship

A ward might not require a guardian forever. A court might revoke a guardianship when the ward recovers from a serious illness or injury and can resume the management of his or her personal affairs.

In other cases, concerned parties might realize that a guardian is either not up to the task or is abusing his or her court-assigned power. A guardian who neglects a ward or uses the ward’s money and property for personal gain could face removal by a court. When a guardian is removed for poor performance or abuse, the court must select a new and temporary guardian until a permanent one can be established.

Naming a Conservator

A person might want to choose a conservator after receiving a diagnosis for a serious medical condition, suffering a bad injury or simply for the sake of preparing for unforeseen events. If a loved one has expressed a desire to name you as a conservator, then you could speak with a New Jersey estate planning lawyer about how to become a conservator. An attorney could explain what powers could be transferred and prepare the court paperwork.

Explore Your Options

Jason Alguram is a Middlesex County probate lawyer who can advise you about guardianship, conservatorship or powers of attorney. Call (732) 351-2121 to schedule an appointment with the Alguram Law Group.