What Do I Do to Obtain a Guardianship?

Independence is important for seniors. No one wants to give that up, until it’s absolutely a necessity. However, could a situation arise where a person has been appointed to be your guardian and no one told you about it? What if that happened in another state? Perhaps a niece wants to “help,” but she’s halfway across the country.

nj.com’s recent article, “Worried someone may want to be your guardian? Here’s what you need to know,” first explains how guardianships work.

Guardians are appointed by a judge, for both minors and incapacitated individuals. An application is required to be made to the court in the state and county, where the minor or alleged incapacitated person lives or where his or her property is located. In either situation, once the minor becomes 18, she receives the property. If the incapacitated person returns to full or partial competency, the court (upon application) may restore that person’s rights, which would dismiss or limit the guardianship.

A guardianship can be of the person. This type is limited to making medical or similar decisions on the incapacitated person’s behalf.  A guardianship concerning the person’s property is another option. A guardianship can also be limited. This means that the guardian is appointed to only make certain decisions, like financial ones. A guardianship can also be plenary, which means the guardian can be appointed to address all issues.

When a guardian of an individual’s property is appointed, the property is usually re-titled into the name of the guardian for the benefit of the incapacitated individual. This gives third parties notice of the guardianship.

In New Jersey, prior to an individual being appointed as the guardian of an alleged incapacitated person, that person has to be given notice of the proceedings. That person is also appointed an attorney by the court to advocate for them or to report to the court on their situation. Therefore, in the questions raised above, a senior would be given notice and legal representation. The niece in another state couldn’t petition for a guardianship behind her aunt’s back.

The records of these types of proceedings aren’t open to the public, because of the confidential information in them, like certifications from physicians on the physical and mental condition of the alleged incapacitated person.

However, information on the name of the guardian for the incapacitated person should be available, so creditors and other third parties can know who to rely on, when providing services to the incapacitated person.

Reference: nj.com (August 24, 2018) “Worried someone may want to be your guardian? Here’s what you need to know”