ALAN JOHN CLARK, PA

HIGHLY EXPERIENCED PERSONAL INJURY & CIVIL TRIAL LAWYER

Guardianship/Incapacity

Office of the Public Guardian

Office of the Public Guardian provides guardianship or conservatorship services of last resort to adults who are at least 60 years old, and have no willing and appropriate family member or friend who can serve in that capacity. The Public Guardian may be appointed as either conservator for competent adults who require assistance with financial and proprietary affairs, or as guardian for those deemed mentally incompetent. The Office of the Public Guardian provides case and financial management.

Guardianship

A complaint for Guardianship requires two affidavits of two physicians or one physician and one psychologist based upon a personal examination of the alleged incapacitated person not more than 30 days prior to filing of the complaint, supporting the complaint and giving the physician/psychologist’s opinion regarding the alleged incapacity. See N.J.S.A. 3B:12-24, N.J.S.A. 3B:1-2, R.4:86-2 (b).

In 2006 the Guardianship Statue was significantly changed to allow for the use of “Limited Guardianships” In a Limited Guardianship the Court must make findings of facts regarding the need and capacity of the alleged incapacitated persons (AIP) in areas of managing his/her financial affairs or medical affairs or legal or vocational or residential or educational affairs. In other words, the alleged incapacitated person (AIP) may only need help in managing his/her financial affairs and therefore a Limited Guardianship in that specific area may be all that is necessary and therefore the Court will enter an Order of Limited Guardianship in that one specific area. In many cases, the alleged incapacitated person (AIP) may be incapacitated to manage his or her financial affairs however is able to manage other aspects of life such as his/her medical issues. Limited Guardianship allows the individual needs of the alleged incapacitated person (AIP) to be considered in formulating a practical legal remedy to the individual case before the Court.

A Plenary Guardianship is very severe remedy. A full Plenary Guardianship permits the Guardian to Manage all aspects of the alleged incapacitated persons life. The law permits the Court to fashion a Guardianship that best fits the needs of the alleged incapacitated person. For example, a Court can Order a Limited Guardianship or a Full Plenary Guardianship or something in between.

In both a Plenary Guardianship or Limited Guardianship the Court must determine by Clear and Convincing Evidence that the alleged incapacitated person is in fact incapacitated pursuant to the statutory definition of incapacity.

The person managing the financial affairs may also be required to obtain a surety bond to protect the person in need of a Guardianship from fraud. A surety bond is not expensive.

To be found incapacitated, the alleged incapacitated person (AIP) must be shown to be impaired by reason of mental illness or mental deficiency to the extent that he or she lacks sufficient capacity and is unfit and unable to govern himself/herself and manage his/her affairs.

Common symptoms or proofs of incapacity include dementia, memory loss, impaired judgements, little to none insights into one’s own issues/deficits and a past

Wasting financial assets. Not paying the mortgage, rent, taxes even though you have the person has the money to due so. Not depositing checks. Finances are a complete mess even though the person has the money. History of vulnerability. A common theme in many of the cases is the inability to handle his/her financial affairs. Vulnerable adult. Vulnerable to scams. Vulnerable to being taken advantage by people or charities or religious institutions. Vulnerability to exploitation. Incapable of making decisions in his/her best interest. Inability to provide his/her basic care needs in an appropriate manner. Unable to plan for the future. Confusion. Cognitive disturbances such as aphasia, apraxia, agnosia or executive functioning. Deficits in speech and language.

Practice Tip:

In the event the Petitioner (person who is filing the complaint) is unable to obtain the two physicians or one physician and one psychologist because the alleged incapacitated person is refusing to cooperate than counsel suggest filing the Guardianship Complaint with the information you have available and request the Court to Order the alleged incapacitated person to attend the evaluations. R. 4:86-2(c) allows the Court to order the alleged incapacitated person to submit to an examination. Please note – you would have to show the Court that the Petitioner tried to have the alleged incapacitated person evaluated and explain why Petitioner was unable to have the two evaluations.

Practice Tip:

Try to gather as much personal information and financial information and medical information regarding the alleged incapacitated person prior to filing the complaint.

Protective Arrangements

A Protective Arrangement is a less restrictive alternative to a guardianship of any kind. It’s less restrictive to a limited guardianship or plenary guardianship. Protective Arrangements only deal with financial assets – real property or cash, stocks, bonds, etc. It can be tailored for a single transaction or be expanded to protect the foreseeable needs of the individual. Protective arrangements is a very good solution where a guardianship is not feasible or appropriate or necessary. For example, a Protective Arrangement is a good solution to help a person manage their financial assets or property of any kind. It’s also a good solution to protect a person from behaving recklessly with their assets or being financially vulnerable. Best of all the legal standard for Protective Arrangements is lower than what is required for Guardianship. You do not have to prove “incapacity” in a Protective Arrangement case. Protective Arrangement is a good alternative for people who are too high functioning to be found to be mentally incapacitated by the required two physicians or one physician and a psychologist. A good example of a person who may be a candidate for a Protective Arrangement would be a person suffering from Bipolar Disorder who is not compliant with medication or Borderline Personality Disorder who exhibits destructive patterns of behavior such as substance abuse or self-injury. A Drug Addict or Alcoholic. A highly functioning Schizophrenic who may be medically compliant or not fully medically compliant. People who have Borderline Intellectual Functioning or Developmental Disabilities who may be highly functioning. See N.J.S.A. 3B:12-1

Practice Tip:

It at all possible you are better off filing a Protective Arrangement because the proofs are lower than a Guardianship and it does not require the voluntary consent of the person in need of assistance. A Protective Arrangement can be tailored to fit the financial needs of the person in need of assistance. You can also start off with a Protective Arrangement and than amend your compliant to a Guardianship if necessary. If the person is in need of assistance is willing to voluntary consent to a Conservatorship you can amend your complaint to a Conservatorship and drop the Protective Arrangement. Protective Arrangements are a good starting point.

Conservatorship

Conservatorship must be totally voluntary. The person in need of a Conservatorship will voluntarily consent to the Conservatorship in front of a Judge. There is no legal adjudication (finding of fact) of incapacitation in a Conservatorship because it’s voluntary. The person in need of a Conservatorship must also voluntarily agree on the person who will be appointed to manage their financial affairs. In other words, the person in need of a Conservatorship must voluntarily agree that a Son or Daughter or Accountant or Lawyer or Bank or a Person shall be allowed to manage the financial affairs. The person managing the financial affairs may also be required to obtain a surety bond to protect the person in need of a Conservatorship from fraud. In a typical Conservatorship – a close family member or a lawyer or accountant is usually appointed to act as a Conservator. The Surety bond is not expensive. See N.J.S.A. 3B:13A-2, N.J.S.A. 3B:13A-16, N.J.S.A 3B:13A-8, R. 4:86-11.

Practice Tip:

A Conservatorship is less expensive than a Guardianship and very useful in many cases. The family should discuss Conservatorship with the person in need as an alternative to a Guardianship. Keep in mind that a Conservatorship has to be voluntary. A Guardianship does not have to be voluntary. In many cases, where the issue is managing the financial affairs of the person a Voluntary Conservatorship is all that is necessary.

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alan@alanclarkattorney.com

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alan@alanclarkattorney.com