Guardianship Options When a Parent or Caregiver is Dying or Can’t Continue

To start a guardianship proceeding upon the death of a parent or Adult Guardian, the person designated in the will as the proposed guardian must file a written request with the County Surrogate, usually called a “Petition for Guardianship.” In New Jersey, guardianship proceedings that arise out of the death of the ward’s physical custodian or biological parent are handled by the surrogate’s office on behalf of the Superior Court. Even though the decedent may have a designated guardian in his or her will, that person does not automatically become the actual guardian unless and until a request for guardianship is made.

My reference to the term guardian on this page refers to the person named in a will to have physical and legal custody of the decedent’s minor child(ren)/incapacitated family member or friend in the event of that person’s death.

When appointing a guardian, the court gives substantial weight to the guardianship designation made in the will (assuming of course a last will exists), but as always, it is the duty of the court to determine what is in the best interest of the Child/incapacitated Adult.  In making a “best interest determination,” the court may assign a person to perform an evaluation of the prospective guardian, which typically includes a home visit(s) from a court-assigned person as well as interviews with the prospective guardian, other family members and the Child/Adult, if age-appropriate and competent. The court may also require that the relatives of the ward(s) be notified of the guardianship request or perhaps order an additional investigation and/or hearing.

Although a judge has the authority to name a different guardian than requested by the deceased person the court most commonly awards a guardianship in accordance with the will. Thereafter, following the appointment, the extent to which the court supervises the guardianship varies greatly depending on the circumstances of each individual case as well as state law. In many instances, there is little to no contact with the court afterward.

Guardianships and Conservatorships of Minor Children & Incapacitated Adult

When is it Required?

The need for the appointment of a guardian for an incapacitated child(ren) and minor(s) is necessary in a variety of contexts. New Jersey statutes contain a variety of contexts.  New Jersey statutes contain these provisions, some of which receive relatively little attention. For example, under the NJ Standby Guardianship Act, (N.J.S.A. § 3B:12-67 et seg.) a parent or custodian suffering from a chronic or fatal condition may make plans for the care of a child without terminating his/her parental rights. Likewise, N.J.S.A. § 3B:12A-1 et seg., allows a “kinship legal guardian,” who is a caregiver willing to assume care of a child due to the parents’ incapacity until the parent finally recovers.

Jurisdiction and Venue of the Courts in Matters Involving Minor and Incapacitated Children

In cases involving the appointment of a guardian for a minor, or incapacitated Child, the Surrogate’s Court of the county in which the minor resides has the same powers as the Superior Court. If the minor is a nonresident of the County where the proposed guardian resides, then the Surrogate’s Court of the county in which the minor resides has jurisdiction to appoint a guardian for the minor.

In an action for the appointment of a guardian for a mentally incapacitated Child (adult child or minor Child) the guardianship application should also be filed, in the county in which the alleged incapacitated person resides.

Who Has Legal Priority When Applying for the Child or Adult Incapacitated Child?  Guardianship of Minor(s)

New Jersey statute(s) establishes a prioritized list of persons who are entitled to receive letters of guardianship for minors. Specifically, N.J.S.A. § 3B:12-21 recognizes that the minor’s parents, or either of them, may be appointed as the guardian of the person and/or property of the minor. If neither parent nor the survivor of them will accept the guardianship, then close family members may be appointed as guardian. As a rule, the closest family member in “bloodline”  is controlling when determining a minor’s nearest blood relative for guardianship purposes, i.e. (infant’s maternal grandmother, rather than his/her paternal uncle was deemed to be the infant’s next of-kin for guardianship purposes).

If the minor’s heirs do not reside in NJ, the court may take any action regarding the appointment of a guardian that is in the best interest of the minor. If no heirs will accept the guardianship, then someone else willing to serve will be appointed as guardian. N.J.S.A. § 3B:12-21.

When considering persons who are equally entitled to letters of guardianship, the court will give preference to a New Jersey resident, unless the best interests of the minor would not be served.

Guardianship of Young Children When You’re Foreign Born and No Family Members Live in the US

If you are a NJ resident with minor children and you die with or without a last will, a New Jersey court may not approve having a non-U.S. Citizen or resident be the guardian of your children should you die.

If you are a permanent U.S. resident but your family lives abroad in their “home” country, the natural choice might be for the children to move to a foreign country and be taken care of by family members (e.g., parents, siblings, etc.) should you die in the U.S. However, don’t simply assume that a NJ court will respect that choice. The court may be reluctant to appoint a non-US citizen as a guardian if it means allowing the children to be taken out of the US. The court will ultimately look to what is in the best interests of the children. As I have observed in my dealings with foreign-born families, children very quickly become “Americanized” and don’t want to go to a new home overseas.

Your County Surrogate’s Office Screens Proposed Foreign Guardians

Many county surrogates won’t appoint a non-citizen, who resides outside the US as testamentary guardian of a minor. They will direct the executor to apply to the Superior Court to have the non-citizen appointed the legal guardian which may become a costly and time-consuming effort. Few parents are aware that just because the proposed foreign domiciled guardian is a family member he/she will automatically be appointed. It is much more complicated.

It is also likely that a non-citizen living abroad will trigger an inquiry into the fitness of the guardian under New Jersey statutes (see N.J.S.A. 3B:12-17 or 3B:12-22) of the proposed guardian disclosures with the application to the surrogate’s office.  These statutes mandate.

There are also practical issues to consider. For example, the proposed guardian may experience delays while seeking to enter the United States. Who will be responsible for the minor child(ren) during any delay?

New Jersey has a significant legal and illegal immigrant community.  The issue(s) raised on this page are very important to understand. Have an open discussion with your attorney about this important issue. The welfare of your children is at stake.

Guardianships of Mentally Incapacitated Adult Persons

The next of kin of an incapacitated person is entitled to the guardianship, unless such appointment is clearly contrary to the best interests of the incapacitated person or his estate. The standards for addressing the guardianship of a minor differ from those standards for resolving the guardianship of incapacitated adults, but the appointment of a guardian named under a parental or legal guardian’s last will is given high respect when the court designates the survivor’s replacement.

General Powers and Duties of the Guardian

The appointment of a guardian for a minor child or mentally incapacitated person vests in the guardian title (as the trustee) to all of the person’s property, presently held or thereafter acquired, including title to any property that had been held for the minor child/adult incapacitated by an attorney-in-fact.

A guardian of the estate of a minor or mentally incapacitated person may spend and/or distribute some or all of the income or principal legally owned by the minor for his/her support, maintenance, education, general use, and benefit and/or his or her dependents, in such manner as the guardian deems suitable and proper in the exercise of reasonable discretion.

However, the guardian is required to make those expenditures reasonably and wisely for the support, education, care, or benefit of the minor with due regard for: (a) the size of the Childs/incapacitated adult’s estate; (b) the probable duration of the guardianship and the likelihood that the ward, at some future time, may be fully able to manage his or her affairs that is being conserved for him/her for the future; and (c) the accustomed standard of living of the minor/incapacitated adult and members of his or her household.

Guardians of Minors: Specific Powers and Duties of the Guardian

A guardian of the person of a minor has the same general powers and responsibilities as a parent except that a guardian is not legally obligated to financially support the child with the guardian’s own personal funds.  The guardian must take reasonable care of the minor’s personal effects and to protect the child’s assets. The guardian may access funds payable for the child’s support, care, and education. In applying these funds, the guardian is required to exercise reasonable discretion, with due regard to the availability of funds and to seek compensation and support from any person required to support or provide for the minor. Under State Statute, a guardian may access without court order, any of the funds, income, or property available to him or her for the benefit of a minor. The guardian is also authorized by statute to facilitate the child’s education, social wellbeing, or other beneficial activities and to consent to medical or other professional care, treatment, or advice. By virtue of this authority, a guardian is not liable for injury caused by the negligence or acts of third persona, unless it would have been illegal for a parent to have given the consent given by the guardian.

When a minor who has not been found mentally incapacitated reaches the age of 18, a guardian is required to turn over and distribute all funds and property to the now adult child as soon as possible.

For property passing to a minor from a parent under 18 years of age, the chancery court, on application by a family member, can direct that some or all the funds be placed in a separate trust for the child until much later in life. This is a very important option for the guardian to protect a minor’s inheritance and savings until they are wiser and more mature. In essence, the court uses this statute and its substituted judgment to name a trustee and set the trust terms within the parameters of the statute.

Guardians of a Mentally Incapacitated Minor Persons

A guardian of a mentally incapacitated minor person has the same general powers, rights, and duties as a parent has regarding an emancipated child, with the exception that a guardian is not legally obligated to financially provide for or support his or her ward with the guardian’s own funds.

Moreover, State law gives some important additional powers and duties upon the guardian of a mentally incapacitated person. Specifically, the guardian is entitled to the physical custody of the person and may establish his or her place of residence, consistent with the terms of any court order or stated preference of residence by the person. If entitled to custody, the guardian is also charged with making provisions for their care, comfort, and maintenance and, where appropriate, arrange for social, vocational education and training. Regardless of the actual physical custody of the person, the guardian must take reasonable care of the person’s personal property and real estate and apply for the appointment of a guardian for the ward’s financial estate, if necessary, to protect its valuables and preservation assets.

Just like with a minor child the guardian is authorized to give consent or approval necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service. The guardian may institute an action to compel any person to perform a duty to support or pay sums for the welfare of the ward. The guardian may also initiate legal action for the best interest of the ward under such circumstances as the guardian reasonably believes is appropriate

The Appointment of a Special Medical Guardian

A hospital, nursing home, treating physician, relative, or other appropriate person may apply to the court for the appointment of a special medical guardian regarding necessary medical treatment when no existing guardianship appointment exists. A special medical guardian will be appointed if the court finds as follows:

  • The patient is mentally incapacitated, unconscious, or otherwise unable to consent to medical treatment;
  • No general or natural guardian is immediately available who will consent to the rendering of medical treatment;
  • The prompt rendering of medical treatment is necessary to deal with a substantial threat to the patient’s life or health; and
  • The patient has not designated a health care representative or executed a health care instruction directive determining the treatment question at issue.

The application for appointment of a special medical guardian is filed with the Superior Court in the County in which the patient is physically located when the application is made.

Because these applications are often of an emergent nature, the judge may accept an oral complaint and oral testimony, either by telephone, in court, or at any other suitable location, especially in life-threatening situations.

Guardians AD Litem for Minor & Incapacitated Adults In Legal Matters

Generally, a minor or mentally incapacitated person is represented in any legal action or litigation by a guardian of either the person or the property. However, if no such guardian has been appointed, or if conflicts of interest exist between legal guardian and the ward, or for other good cause, a guardian ad litem must be appointed by the court.

Appointment of Parent in Negligence Actions

In negligence actions, unless the court directs otherwise, a parent of a minor or mentally incapacitated person is deemed to be appointed guardian ad litem, without court order, upon the filing of a pleading or certification signed by an attorney attesting to the parental relationship, the child’s status, and if a minor, the age, the parent’s consent to act as guardian ad litem, and the absence of a conflict of interest between parent and child.

Appointment on Petition

The court may appoint a guardian ad litem for a minor or an alleged mentally incapacitated person where a Fiduciary seeks to have an account settled that may have a potentially adverse impact upon the minor or if the fiduciary has a personal interest in the case that validates an impartial person to sign off.

Duties and Responsibilities

A guardian ad litem for a minor or mentally incapacitated person must file a written report with the court at least seven days prior to the date on which an account relating to the minor or mentally incapacitated person is settled.

Distinction Between Guardian Ad Litem and Guardian

The function of the guardian ad litem is to protect the interests of the ward in the context of legal litigation matters and especially lawsuits. Taking substantive actions on behalf of the ward is the function of the guardian of the person or property, not the guardian ad litem.

In tragic circumstances, a substitute guardian is necessary when one or both biological parents die with a minor child(ren) or an incapacitated adult child is left surviving.  If you are involved in such a situation and guardianship and other options are being discussed, contact Fredrick P. Niemann, Esq. of Hanlon, Niemann & Wright.  Call our office toll-free at (855) 376-5291 or email Fred today at  He welcomes your call and you’ll find him genuinely warm, sensitive, and very experienced.

I was lucky enough to have Mr. Niemann handle my affairs. He was so professional and compassionate during a very difficult time for me. My total experience was great!
—Arti Sinha, Marlboro, NJ

It was a real pleasure working with this firm.  I had a lot of questions resulting in quite a few phone calls and Mr. Niemann and his staff were very responsive and never once made me feel uncomfortable and always took the time to clarify or explain anything I didn’t understand.  I would highly recommend this firm and will return when the time comes that I need services again.
—Colleen Moore, Tinton Falls, NJ


Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright,  A Freehold Township, Monmouth County New Jersey Guardianship Attorney

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