A guardianship is what allows one person to make legal decisions for another. Usually, they only occur when there is no durable power of attorney (more on that later).

A typical scenario might occur like this: A child has been helping Mom or Dad with their bills. Dad used to be very independent, but dementia set in a year or so ago. Ever since then, Child has gone down to the bank with Dad to make sure he has enough to pay bills and have some pocket change. Then, one day the teller at the bank says Child can’t keep doing this because Dad can’t remember. They mention a power of attorney or perhaps a guardianship. What does Child do?

When Mom or Dad no longer have capacity to sign checks or enter into contracts, someone (usually a child) is going to need some type of legal authority. The lucky ones in this situation will have done some Estate Planning and have a “Durable Power of Attorney” in place. For the rest of us, we will need to file a guardianship application.

A Guardianship is a legal proceeding where an individual (usually the nearest-of-kin) applies to the court in order to have full authority over an incapacitated individual. Most guardianship cases in New Jersey occur when an elderly individual can no longer take care of their own affairs because of cognitive decline, usually because of dementia, Alzheimer’s, or other impairment.


Three applicants generally file a guardianship with the courts: family, a nursing home, or the Government.

Prior to filing an application, the Applicant will need to get two doctors to attest that the individual is incapacitated. That is the first hurdle to a guardianship. When the Applicant files with the Surrogate (the government official over oversees guardianships in a county), a Judge will appoint a “Court Appointed Attorney” for the alleged incapacitated individual and set a date that everyone needs to come back to court so the Judge can hear about the case.

In the meantime, the Court Appointed Attorney is going to go out and interview the alleged incapacitated individual, the family, and do other general investigations. This is because the Court Appointed Attorney is going to write a report to the Judge that essentially recommends how the case should be decided. 

Typically, the Court Appointed Attorney is going to make sure that (1) the person is actually incapacitated, (2) there is no abuse of the individual, (3) the proposed Guardian is fit for the job, and (4) there is a plan of care that will satisfy the needs of the incapacitated. Also during the period between the application and the date everyone will go back to the Judge is the time in which other Applicants might come forward and propose that they become the Guardian instead (often referred to as “Objectors”). A typical objector may be another family member who wants to take care of Mom or Dad.

On the return date, the Judge is going to have everyone come into the court (with the possible exception of the incapacitated) and the parties will discuss the case. Generally speaking, one of two things are going to happen: (A) everything is in order and the Judge will appoint someone as the Guardian or (B) something is wrong and the Judge is going to set the case down for a hearing or trial after a period of “discovery” (when the parties get to discover the evidence of the other parties). If there is a hearing or trial set, the Judge will usually set this several months into the future. When the time comes for the trial/hearing, the parties will present their evidence as to why the incapacitated will be best served with them as the Guardian.

After the Judge selects someone to be the Guardian, that person needs to go back to the Surrogate and qualify to be the Guardian. This usually means that the Guardian will have to post a bond (a financial document guaranteeing their faithful performance) with the Surrogate, fill out some forms, and–of course–pay some fees. After the Guardian has qualified, they will be issued papers from the Surrogates and ONLY THEN will the Guardian be able to legally make decisions on behalf of the incapacitated individual.

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