Summit Guardianships & Conservatorships Lawyer

When a loved one becomes unable to manage their own affairs due to age, illness, or disability, families often face difficult decisions about how best to provide care and protection. In these situations, establishing a guardianship or conservatorship may be necessary to ensure that the individual’s personal and financial needs are met.

The estate planning and elder law attorneys at Dempsey, Dempsey & Sheehan offer skilled, professional assistance in this important area of law. Through thoughtful estate planning, we help families put the right mechanisms in place to avoid the necessity of guardianship or conservatorship arising. If the need does arise, either due to an emergency or because it is the best option available, we represent interested parties to ensure any guardianship or conservatorship is properly put in place. Contact us today to share your needs and concerns with an experienced and compassionate Summit guardianships & conservatorships lawyer.

What Is a Guardianship?

In New Jersey, guardianship is a legal arrangement in which a court appoints a responsible person, known as a guardian, to make decisions on behalf of an individual, called a ward, who is incapacitated and cannot make decisions for themselves. Incapacity might arise from conditions such as Alzheimer’s disease, developmental disabilities, or severe mental or physical illness. The appointed guardian has the legal authority to make decisions about the ward’s personal and healthcare needs.

There are several forms of guardianship in New Jersey:

General (or Full) Guardianship: This guardianship is established when a person is deemed fully incapable of managing any of their personal or financial affairs. The guardian assumes responsibility for all decision-making, from medical care to living arrangements.
Limited Guardianship: This arrangement applies when the individual retains some decision-making capacity. The court limits the guardian’s responsibilities to specific areas, such as healthcare or finances, while the ward maintains autonomy in other areas.
Temporary Guardianship: In urgent situations, a temporary guardian may be appointed to provide immediate protection for the ward until a more permanent arrangement can be made.

What Is a Conservatorship?

Conservatorship in New Jersey is similar to guardianship but focuses solely on managing the financial affairs of someone incapable of doing so themselves. A conservator is responsible for handling the individual’s assets, paying bills, and making investment decisions. The key difference is that conservatorship can be voluntarily initiated by an individual who recognizes the need for financial assistance, whereas guardianship is typically imposed by the court when the person is declared incapacitated.

Establishing a Guardianship or Conservatorship in New Jersey

The process of setting up a guardianship or conservatorship involves a legal proceeding in the New Jersey Superior Court, Probate Part. Here’s an overview of the steps involved:

Filing a Petition: The process begins when a family member or concerned party files a petition with the court, requesting guardianship or conservatorship. This petition must include documentation and evidence demonstrating the person’s incapacity.
Medical Evaluations: The court will require medical documentation, often including a comprehensive evaluation by a licensed physician, psychologist, or psychiatrist, detailing the extent of the individual’s incapacity.
Hearing: The court will hold a hearing to review the petition and the evidence presented. The individual in question has the right to be present, to be represented by an attorney, and to contest the guardianship if they are able.
Court Decision: If the court determines that the individual is indeed incapacitated, it will appoint a guardian or conservator and outline the scope of their authority. The court may also require regular reporting to ensure that the guardian or conservator is acting in the best interest of the ward.

Responsibilities of Guardians and Conservators

Both guardians and conservators are fiduciaries, meaning they have a legal duty to act in the best interests of the person they are appointed to assist. A guardian’s responsibilities include overseeing healthcare, living arrangements, and day-to-day personal needs. Guardians must act in a way that preserves the dignity and autonomy of the ward as much as possible. Conservators, in contrast, are concerned with managing finances, paying bills, protecting assets, and handling investments. Conservators must keep detailed records and report to the court periodically about the financial status of the ward’s estate.

Alternatives to Guardianships and Conservatorships

Before pursuing guardianship or conservatorship, it is worth exploring less restrictive alternatives, such as powers of attorney, healthcare directives, and trusts. A power of attorney is a legal document that allows an individual to appoint someone they trust to manage their financial or medical affairs in the event of incapacity. An advance healthcare directive, on the other hand, specifies an individual’s preferences for medical treatment and appoints a designated agent to make healthcare decisions for the incapacitated individual. Establishing a trust, meanwhile, can protect and manage assets without the need for court intervention.

These options often provide greater flexibility and autonomy compared to a court-appointed guardianship or conservatorship. Typically, these alternatives should be put in place before the need arises. By engaging in comprehensive estate planning that considers the possibility of incapacity, families can save time, money, and stress from having to seek guardianship or conservatorship during a difficult time.

Special Medical Guardianships in New Jersey

In certain circumstances, New Jersey law allows for the appointment of a Special Medical Guardian to make urgent medical decisions for an incapacitated person. This type of guardianship is often sought in emergency situations when immediate medical intervention is necessary, and there is no time to go through the regular guardianship process.

A Special Medical Guardianship is a limited form of guardianship appointed by the court to address a specific, time-sensitive medical issue. This arrangement is often necessary when a person is unable to provide informed consent for critical medical treatment, and delaying care could result in severe harm or even death. The Special Medical Guardian is granted authority solely to make medical decisions and does not have control over other aspects of the individual’s life, such as finances or daily care.

Special Medical Guardianships are typically used when:

Life-Saving Treatment Is Required: The individual needs immediate medical intervention, such as surgery or other urgent medical procedures, and cannot consent to treatment.
No Existing Healthcare Agent: If the incapacitated person has not appointed a designated healthcare agent through an advance directive or there is no other legal authority in place to make medical decisions on their behalf.
Disputes Among Family Members: In some cases, family members may disagree on the appropriate medical course of action, and court intervention is needed to appoint someone to make decisions in the best interest of the patient.

Obtaining a Special Medical Guardianship in New Jersey involves an expedited legal process due to the urgent nature of the situation. First, a concerned party, usually a family member or healthcare provider, files an emergency petition with the New Jersey Superior Court, Probate Part, requesting the appointment of a Special Medical Guardian. The petition must include medical documentation that clearly outlines the individual’s incapacity and the need for immediate medical intervention. The court will hold a hearing as soon as possible, often within a matter of hours or days. If the situation is extremely urgent, the hearing may be conducted over the phone or via video conferencing. During the hearing, the judge will review the evidence and may also hear from medical professionals.

If the court approves the petition, it will issue an order appointing the Special Medical Guardian. The order will specify the guardian’s authority, which is limited to making decisions about the necessary medical treatment. Once the medical crisis has been addressed, the authority of the Special Medical Guardian typically ends.

The attorneys at Dempsey, Dempsey & Sheehan are experienced in the process of special medical guardianships and are available to consult with you as needed, offering practical advice and professional assistance and representation throughout the process.

Experienced Legal Guidance for Guardianships and Conservatorships in Summit, NJ

At Dempsey, Dempsey & Sheehan, our experienced Summit estate planning and elder law attorneys can guide you through the process, from evaluating whether guardianship or conservatorship is appropriate to ensuring that your rights or the rights of your loved one are protected. Contact our office today by calling 908277-0388 to discuss your unique situation and learn how we can assist you in securing the well-being of your loved one.