It is a good idea when drafting a last will and testament that you put language in there appointing a guardian for your minor children in case something tragic happened to you and your spouse and you needed somebody to take care of your children. A guardian can also be named in a will for somebody who has a guardian in place because something happened to him or her that rendered him or her incapacitated, whether it was an accident or a mental disability.
Note that under the law, if you are the guardian of an adult and name your successor in your will, it would require the successor to have to apply to the court in a full guardianship action to become a guardian. This process involves notifying the relatives of the person who is incapacitated, along with a court appointed attorney reviewing your fitness to being a guardian, so this appointment could be contested. However, the benefit of naming someone is that this preference would be strongly taken into account by the court. A successor guardian for a minor is a less complicated process that can be accomplished by the Surrogate, but would still need to be signed off by other family members before the appointment goes through.
One of the interesting facets of the law is that there is no age requirement as to who can be the guardian of a minor. Does that mean that a minor child can serve as a guardian? A court will certainly not be approving of that action. But someone who is 19 or 20 years’ old who is named as a successor guardian could be appointed by the courts so long as they are deemed fit to be a guardian by the court.
To discuss your NJ guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing consultations if you are unable to come to our office.
Written by Stephen W. Kornas, Esq. of Hanlon Niemann & Wright