When tragedy strikes it may be
necessary to petition the court for an order of guardianship
over the person or property, or both, of an incapacitated
adult. Of course, where an adult is concerned, it is usually
preferable to have a power of attorney appoint an agent,
however this is not always possible. The court has similar
powers to appoint a guardian of a minor child under the age of
18 years.
An individual may petition the New
Jersey Superior Court, Chancery Division, for Letters of
Guardianship ("Letters") over the person and
property of an alleged incapacitated person If the court finds
that the person is, in fact, incapacitated, the court issues
letters to one or persons ("the guardian") who is
serves as agent and trustee for the incapacitated person
("the ward").
The guardian may serve as guardian
of the person or guardian of the property ("Estate")
or both. That is, one person or set of persons may have
responsibility for the personal welfare of the ward, and
another set of persons may have responsibility over the
financial resources of the ward. In any event the guardian is
a fiduciary and must act only in the best interests of the
ward.
The court is the final arbiter of
issues, actions and disputes involving the ward's person and
property, therefore the court may limit or define the
authority of the guardian in the Letters. The court may
require the guardian to report to the court on a regular
basis. This reporting may take the form of an accounting of
income and expenses and documents supporting each.
In most cases it is preferable for
the adult to have executed a Power of Attorney and Advance
Health Care Directive, but in cases where court supervision is
desired or where the adult has failed to execute the
documents, guardianship is available.
Attorney-
at- Law
35 Court Street
Freehold, New Jersey 07728