All New Jersey guardians are appointed by the Superior Court of New Jersey. A “guardian” is a person appointed by a court to make decisions regarding the person or property of an incapacitated adult. A person is “incapacitated” under the law if he or she “is impaired by reason of mental illness or mental deficiency to the extent that [he/she] lacks sufficient capacity to govern [him/her]self and manage [his/her personal and financial] affairs.” A “ward” is an individual for whom a guardian is appointed or an individual under the protection of the court.

Any action for guardianship of an alleged incapacitated individual is governed by statute and court rule. All guardianship appointments are made after a complaint is filed by a family member or another seeking guardianship. A guardianship complaint must include affidavits of two physicians, or one physician and a licensed psychologist, stating “the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as, residential, educational, medical, legal, vocational or financial decisions.” A judge must determine by clear and convincing evidence that a proposed ward satisfies the statutory definition of an incapacitated person.

The court establishing the guardianship has an obligation to ascertain that the guardian, once appointed, is functioning in the best interests of the ward. To assist guardians in the performance of their duties, the New Jersey Judiciary, Surrogates’ Liaison Committee, has published a booklet entitled “Manual for Guardians” which provides an overview of a guardian’s “responsibilities …and what tasks have to be accomplished and who will be of the best assistance … in seeing that the steps are properly completed.” The manual is distributed by the court to every person in New Jersey who is appointed guardian of a ward.

The manual divides a guardian’s responsibilities into two groups of duties: responsibilities relating to care of a ward’s person, and those relating to care of a ward’s property. A guardian of the person makes all medical and personal decisions for the ward, such as where the ward will live, and how meals, medical and personal care, transportation, socialization and recreation will be provided. The manual advised guardians that the ward should be allowed to remain in his/her usual residence as long as there are sufficient assets for proper and affordable help available at the residence to make it safe and comfortable for the ward. Further, a guardian also has exclusive authority to make health care decisions. Guardians also have a duty to ensure that appropriate activities are provided for the ward if he/she has the physical ability and mental capacity to enjoy the activities.  Guardians must make personal decisions for a ward which preserve, to the greatest degree possible, the ward’s self-esteem and dignity.

A guardian of the property has the responsibility to manage and use the ward’s property solely for the benefit of the ward. To fulfill this duty, a guardian must perform the following tasks: (1) identify, collect and take control of the ward’s property; (2) ensure that all property is adequately protected against loss, especially if the ward has many investments; (3) establish a budget for the ward; (4) pay the ward’s debts as they become due, and according to priority within the ward’s financial ability to pay; (5) invest the property as permitted by law and in a manner suitable to the ward’s circumstances. Financial advisers, as well as other professionals, may be hired, if appropriate; and, (6) periodically furnish a written report, called an accounting, to the court about the assets, receipts and disbursements of the ward’s estate.

Expenditures in any budget established by a guardian will be dependent on the extent of medical treatments or long-term care needed by the ward. A ward who can reside in his/her home independently or with limited assistance will require a much lower expenditure of assets than a ward who requires nursing home care. In addition, guardians must investigate the ward’s potential eligibility for needs-based public benefits which can be used to pay for medical care and other needs. Examples of public benefits which a ward may be eligible for include Supplemental Security Income (SSI), Medicaid, General Assistance, Lifeline Assistance, Section 8 Housing and the like. If a ward is potentially eligible for public benefits, the guardian must apply for public benefits to the extent available.

Guardians are entitled to compensation. A guardian’s compensation is called a “commission.” Guardianship commissions include a payment of 6% on all income collected, as well as 5% of the ward’s assets, or “corpus” of the ward’s estate. However, the corpus commission decreases as the size of the ward’s estate increases. Any compensation is considered to be taxable income paid to the guardian. Guardians may also be reimbursed for any expenditures made on behalf of the ward.

The manual also confirms that final authority to make decisions regarding the ward’s care rests with the guardian subject to court approval. However, guardians are advised to discuss all decisions, if possible, with members of the ward’s family because “[d]oing so may avoid misunderstandings, animosity and further legal controversy.”

New Jersey’s Manual for Guardians is annexed here – Manual for Guardians

The Appendices to the Manual for Guardians are annexed here – Manual for Guardians – Appendices

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