Understanding Guardianship

March 15, 2015

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Understanding Guardianship In New Jersey

At the age of 18 all individuals, including those with developmental disabilities, reach the legal age of majority. This means that parents can no longer make decisions legally on behalf of their children, regardless of the nature or extent of their disability and regardless of whether or not they still live with their family. A guardian refers to a person or agency that is legally authorized to act on behalf of a minor or an incapacitated adult to assure that the person’s health, safety and welfare needs are met and that his or her rights are protected. The duties of a guardian also include making decisions on behalf of the individual and giving informed consent in certain matters.

Does my child need a guardian?

Guardianship is only necessary for an individual who lacks the ability to make decisions in some or all areas. Many individuals are capable of making their own decisions, with appropriate support and advice, and do not need a guardian. The legal test for guardianship is whether or not an individual has the ability to govern themselves or their own affairs. The idea of whether or not an individual can give informed consent is at the heart of determining if an individual needs someone else to be their guardian. Informed consent means that the individual gives permission for something to happen or not happen and that they fully understand the consequences and risks associated with that decision.

Types of guardianship

  • General guardianship is sometimes referred to as “plenary” guardianship and is typically for individuals who have been found incapable of making or expressing any decisions.
  • Limited guardianship covers decision making around residential, educational, medical, legal, vocational and financial issues and is appropriate for individuals who have been found capable of making and expressing some, but not all decisions.

How do I establish a guardian?

In order to establish guardianship an application to the court must be completed. Some families choose to hire an attorney to guide them through this process. Others may choose to represent themselves and complete the application available online.

After the initial application is submitted, a psychological evaluation of the person for whom guardianship is sought is conducted. Additionally, the court system assigns a representative from the Department of the Public Advocate to represent the individual in the court’s action. If the representative agrees with the application based on interviews with the individual, then no hearing needs to happen to establish guardianship. If there is no agreement, then a hearing will be held where both sides can argue their positions and a judge will make a ruling about guardianship.

Guardianship: Legal Update

The New Jersey Judiciary provides forms and instructions for individuals who wish to represent themselves (appear pro se) in court to apply for guardianship of a person who is eligible for or receiving services from the Division of Developmental Disabilities (Title 30 guardianships).

There are two packets available for prospective guardians:

Application for guardianship of the person only: https://www.njcourts.gov/forms/12009_guardianship_person.pdf

Application for guardianship of the person and their estate: https://www.njcourts.gov/forms/10558_guardianship_person_and_estate.pdf

Both packets reflect 2016 changes in the statutory law (N.J.S.A. 30:4-165.8), following the enactment of P.L. 2015, c. 132.  The Act amended the Title 30 guardianship process, and broadened the types of accepted supporting documentation to include copies student’s individualized education program (IEP) or an affidavit from a licensed care professional, which the law defines as:  “…a duly certified or licensed advanced practice nurse, board certified assistant behavior analyst, board certified behavior analyst, clinical nurse practitioner, licensed practical nurse, family counselor, nurse, occupational therapist, physical therapist, physician assistant, professional counselor, registered nurse, social worker, or speech language pathologist.”

The change makes securing documentation less costly and burdensome for many prospective guardians.  The full list of acceptable documentation is included on page 5 of each packet.

Additional Information

For more information about guardianship or any other questions, please feel free to contact Autism New Jersey at 800.4.AUTISM or information@autismnj.org