Guardianship Legal Services To Be Provided/Retainer FEE $2,500

GUARDIANSHIP
OF DISABLED  ADULTS

Compiled
by Kenneth Vercammen, Vice-Chair, ABA Elder Law Committee, GP Section

         Occasionally  an individual cannot manage his or her life
as a result of a mental or physical disability, alcohol or drug addiction. If a
legally prepared power of attorney was signed, a trusted family member, friend
or professional can legally act on that person's affairs. If a power of
attorney was not signed, your attorney must file a formal complaint and other
legal pleadings in the Superior Court to permit the trusted family member,
friend or professional to be able to handle financial affairs.

         Powers of Attorney are generally given
by one person to another so that if the grantor of the power becomes ill or
incapacitated, the Power of Attorney will permit the holder of it to pay the
grantor's bills and to handle the grantor's affairs during the inability of the
grantor to do the same.

         A Power of Attorney is an appointment
of another person as one's agent.  A
Power of Attorney creates a principal-agent relationship.  The grantor of the Power of Attorney is the principal.  The person to whom the Power of Attorney is
given is the agent.  We give the title
"attorney-in-fact" to the agent who is given a Power of Attorney.

         Without a legal Power of Attorney or
court ordered guardianship, even a spouse does not have the legal authority to
sign their spouse's signature.  If a
valid power of attorney is not legally prepared, signed and acknowledged in
front of an attorney or notary, it is invalid. Without a power of
attorney,  a Guardianship Order and
Judgment must be obtained from the Superior Court to permit complete legal decision-making.

         According to Disability Law, A Legal
Primer published by the New Jersey State Bar Association, "A guardian is a
person appointed by a court to make financial and personal decisions for a
person proven to be legally incompetent." 
p11

1.
When is a guardian needed?

         A guardian is needed when an individual
cannot manage his or her life as a result of a mental or physical disability,
alcohol or drug addiction. The person for whom a guardian is appointed is
called a "ward". Disability Law at p11

         Recently enacted legislation (P.L.
1997, c 379) changed the designation of "mental incompetent" to
"incapacitated person" in all laws, rules, regulations and documents.
The Supreme Court Committee on Civil Practice 
will be considering whether the Rules of Court should be amended in
accordance with the statute. New Jersey Lawyer  
March 23, 1998

2.
What rights does a incompetent lose?

Unless
a Court orders otherwise, a ward/ incompetent does not have the right to decide
where to live, spend money, use property, appear in Court or undergo medical
treatment without the approval of his or her guardian. An unmarried incompetent
also loses the right to marry.

3.
How does somebody become the guardian of another?

Guardians
are appointed by Courts after the person in need of guardianship is proven
incompetent. Guardianship actions can be brought under the general incompetency
statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people
who receive services from the State Division of Developmental Disabilities.
N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent or
are parents of an unmarried incompetent can choose who will become the guardian
after the guardians die and include a clause designating their successor in
their wills. Disability Laws p12  Under
the general incompetency statute, a Complaint requesting Guardianship must be
filed in the Superior Court, plus a detailed Affidavit by the person requesting
to be Guardian detailing the assets of the incompetent plus reasons why the
incompetent is no longer able to manage their affairs. Affidavits of two
doctors are also needed. The Court will appoint a temporary attorney to
interview the incompetent and prepare a report to the Court.

4.
Who can be a guardian?

Generally,
a close relative or a person with a close relationship to the proposed
incompetent who will act to protect the incompetent's best interests can be
guardian. when a close friend or relative is not available, the Court may
appoint the Public Guardian (for persons over 60) or an Attorney to serve as
guardian.

5.
What are the rights of the proposed incompetent prior to hearing?

The
proposed incompetent is entitled to receive advance notice of the guardianship
hearing, to be represented by a lawyer and to present a defense at the hearing.

6.
What happens if the incompetent regain the ability to manage his or her
affairs?

The
incompetent came then go back to Court and ask to be made his or her own
guardian again, but first must show that he or she has regained "sound
reason".

7.
When is a guardian not needed?

Just
because a person has a disability, does not mean that they need a guardian. A
guardian  is not needed if a person can
make, and understands the nature of the decisions, and communicate the
decisions to others.

A
guardian is not required for someone who has a physical disability, but who can
manage his or her affairs, and is not needed if a person merely has a problem
managing money or property.    Disability
Law p12

Additional
information on Elder Law is available in the New Jersey State Bar Association's
booklet Senior Citizen Rights.   In
addition, elder law articles are available on the website www.njlaws.com