What is a Guardianship and Who Needs One?

By Eric Goldberg, NJ Elder Law Center at Goldberg Law Group
There are few circumstances in life more devastating than seeing a parent lose capacity and require the full care of a child or caregiver.  Approximately 60% of people do not have a valid Power of Attorney appointing an agent to make financial and healthcare decisions in the event they are unable to do so.  When one loses capacity due to a cognitive decline, the first documents we look to are the Durable Power of Attorney and Healthcare Directive.  

Both documents are usually adequate to allow the designated agent to make important decisions. Of course, the documents must be validly executed and recent enough to appoint the correct agents.  For instance, one common problem we see with Powers of Attorney is the appointment of a spouse without a successor. This method is often inadequate as the married couple ages and the appointed spouse is no longer capable of acting due to disability or death.

If the foregoing documents are not available and the individual lacks the capacity to sign Powers of Attorney, a guardianship or a conservatorship is necessary.  Some events creating the necessity of a guardianship are the requirement for: admission into a facility, consent to surgical procedures, sale of real estate, access to bank accounts, and Medicaid planning.

What is a Guardianship?

A Guardianship is the legal process used for individuals who lack appropriate legal documents that are unable to care for themselves or manage their affairs.

A basic guardianship action is a court proceeding where the proposed guardian asks the court to formally appoint her to manage the affairs of the incapacitated individual, otherwise known as the proposed ward.  While a guardianship is largely procedural, courts take it very seriously as the granting of a guardianship removes an individual’s ability to self-govern.  It removes the individual’s liberty to make her own decisions regarding finances and healthcare.

First, a formal complaint must be filed and certain close family members must be put on notice. Second, two doctors are engaged to examine the proposed ward.  The doctors’ reports are made a part of the pleadings and become part of the basis for the court’s decision.  Next, the court appoints an attorney to represent the interests of the proposed ward.  Finally, all parties appear at a hearing before a judge.

As you can imagine, a guardian proceeding is time consuming, emotionally draining, and expensive. Unfortunately, without proper planning a guardianship is necessary to manage the affairs of our loved ones.