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Guardianship

Roth-Gutman Law, LLCMarch 9, 2023March 9, 2023GuardianshipGuardianship, Parenting

Filing for Guardianship is important for many families. This article will focus on the specific importance for adults with disabilities.
As a loving, caring parent you spent all your time on top of medical, education, extracurriculars, therapies and financial decisions while your child was under 18 years old. Now that they are about to turn 18 or are over 18 years old, the law treats them as an adult that is able to make all those decisions. Not all people over 18 have the capacity or ability to pick up all those responsibilities. It’s only natural to want to continue to protect and take care of your child, especially if they need you to continue to make all or some of those same decisions for them.
This can be a difficult transition for both you and your child, but filing for Guardianship can help ease the process.
What is Guardianship?

The power to legally make medical, legal and financial decisions for another person who is incapable of administering some or all of those decisions on their own
The Court will determine a person’s mental competency
Legal relationship that is enforceable via a Court order

Why is it important to file for Guardianship?
Once an individual turns 18, they are legally considered an adult and have the right to make their own decisions, even if they are not capable of doing so. It is important to file for Guardianship to ensure that they are protected and that their needs are met. Doing so closest to 18 years old will provide continuity and stability of care. Prior to filing for Guardianship, the potential guardian (often times parent) should consider:

Day to day assistance needed for daily living activities:
Eating
Mobility - walker, wheelchair, transferring in and out of bed
Bathing, Dressing and Grooming - unable, assistance or needs to be reminded
Shopping, Cooking, Cleaning, Managing Finances
Medical
Legal
Education
Vocation
Financial exploitation by others
You are concerned about your child’s understanding of the world around them

What is the process to file for a Guardianship?
Filing a Guardianship in each state varies. In New Jersey, the process of filing for Guardianship is through the local Surrogate’s Court. In general, it involves filing a petition know as a Complaint with evidence. Attached there are many documents, including certifications of two medical professionals, certification of assets, and certification for background checks. If an IEP exists, attaching it may be beneficial as well. The Court requires the potential guardian to watch a training video, serve notice to family members and possibly other government offices as well as send the court a proposed order along with a $200 filing fee.
Once the Surrogate’s Office receives the filing, the court will appoint a lawyer to represent the individual’s interests. There may be a cost for the court appointed attorney. That attorney will meet with the individual and interview family members about whether the proposed Guardianship should be granted. A hearing will be held, where the court will consider the evidence, as well as the court appointed attorney’s report. the The judge will make a decision about whether to grant guardianship. If granted, the Surrogate’s Office will issue a Court Order and Letters of Guardianship can be ordered for a $50 fee.
If you have concerns about your child's ability to make decisions, it's important to seek advice from their teachers, medical professionals, therapists, and an attorney. A Guardianship is not a catch all for everyone, sometimes another type of legal document called a Power of Attorney may be more appropriate. Please make sure to seek legal advice regarding which is the most appropriate option for you and your family. This article is not intended to give legal advice rather to serve a general overview of Guardianship.

Published by Roth-Gutman Law, LLC

Jill Roth-Gutman is a Child Welfare Law Specialist, certified by the National Association of Counsel for Children, a credentialing organization approved by the American Bar Association. She focuses on basic estate planning and niche family law, including acting as Guardian ad Litem in contested custody cases, and filing DCPP adoptions and uncontested special needs guardianships. She also provides consultations to family members and foster parents aka resource parents. Her estate planning services include writing Wills, Power of Attorney, and Living Wills. Ms. Roth-Gutman serves as a Director on the New Jersey State Bar Association Solo and Small Firm Committee, is a proud member of the New Jersey State Bar Association Child Welfare Committee and Family Law Committee, and a member of the Burlington County Bar Association. She is the Board of the Camden County Workforce Development Board and is the Chair of the Youth Investment Council Committee. View more posts

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