When you hear the terms “guardian” and perhaps “conservator,” what do you think of? You probably think of somebody who is a protector and an advocate of those they take care of. And you would be right. Guardianships are useful when a person cannot make decisions on their own. The guardian advocates on behalf of his or her ward (a ward is the person who needs help) and is responsible for whatever decisions cannot be made by the ward. The legal boundaries of what the guardian can and cannot do are set by the judgement of guardianship entered by the court when it determines what the incapacitated person can do for themself and what they cannot. As in many things, being a guardian has its advantages and disadvantages, which I will discuss for you below. Take a quick look.
Learn the Benefits and Disadvantages of Guardianship in New Jersey
What are the Benefits of Guardianship in NJ?
The main advantage of being a guardian is that it offers stability not only to the ward, but to his or her family. If a person is declared incapacitated and a general guardian is appointed, the person will no longer be able to self direct, and manage their finances, make significant lifestyle decisions, change his or her will, get remarried, or engage in otherwise reckless behavior. These loss of rights are intended to protect the person’s assets and income from “untrustworthy persons”, “predatory family members” or “friends” whose disguised nature is more about the money than the welfare of the person. Financial elder abuse and exploitation is a major issue today, and a guardianship proceeding seeks to put an end to elder abuse and/or undue influence if acted upon in time. For example, the appointment of a general guardian by the Court can prevent a vulnerable elder from marrying, particularly to a younger (say 30+ year old stripper or the “GQ pool boy”) who will then become a predatory spouse.
The appointment of a general guardian prevents a tug of war among competing family members or “friends” who want to make decisions for the vulnerable elder, especially siblings. This is because the discovery of evidence and information during the guardianship proceeding will capture the financial condition of the incapacitated person (or others). The status of the person’s finances will be beneficial in any subsequent will contest or legal action to recover misappropriated funds or assets once the court declares the person is incapacitated. If a general guardian is not appointed, the alleged incapacitated person will retain the power to change his or her estate plan and disinherit whomever he or she wants. Ultimately, a guardianship proceeding may lead to a global settlement among interested parties who are vying for control over the declining person.
Financial decisions over who gets what aren’t the only benefits of a guardianship proceeding. Decisions regarding medical care and life care planning services can be made to enhance the quality of life of a loved one. This is critical when the person is unconscious and cannot authorize life-saving procedures, or if the wishes of the ward if or when he or she is on life support is that life-saving treatments be withheld. A guardianship proceeding may authorize the engagement of professionals who can assist the caregiver in all aspects of the dependent person’s life and alleviate symptoms of “caregiver burnout” as well. Below please find my bullet point listing of what I consider to be guardianship advantages:
Guardianship Offers Stability
- If a person is declared incapacitated and a general guardian is appointed, the person will no longer be able to manage their finances, change his or her will or engage in reckless financial behavior. This protects the person’s assets and income from “predatory family members” or “friends” whose disguised nature is more about the money than the welfare of the person. Financial elder abuse and exploitation is a major issue today.
- Discovery of evidence and information during the guardianship proceeding may lock in the testimony of the alleged incapacitated person or others that will be beneficial in a subsequent will contest or legal action to recover misappropriated assets.
- The guardianship proceeding may flush out and put an end to elder abuse and/or undue influence.
- The appointment of a general guardian will prevent a vulnerable elder from marrying, particularly to a younger, potentially predatory spouse.
- The appointment of a general guardian prevents a tug of war among rivals who want to make decisions for the vulnerable elder, especially siblings.
- The guardianship proceeding may lead to a global settlement among interested parties who are vying for control.
- The guardianship proceeding may lead to the return of the ward’s assets.
- Authorize appropriate and necessary medical care and life care planning services to enhance the quality of life of a loved one.
What are the Disadvantages of a Guardianship in NJ?
Quite simply, a person’s freedom and basic rights are limited by the decisions of the guardian. While New Jersey law favors leaving as much decision-making power to the individual, the fact remains that the guardian ultimately has the legal authority given to him or her by the Superior Court and will make decisions he or she believes is in the best interest of his or her ward. This can (and often will) lead to an infringement of the incapacitated person’s privacy, freedom and loss of decision-making authority.
A guardian can also become overly protective, dominating and arbitrary. While New Jersey law allows one to have a guardian removed and another person substituted, the cost of these proceedings may be too much for some individuals and families. Since guardianships can be contested, there may be a lot of money spent to pay for that proceeding, so additional costs in removing a guardian is an unacceptable option.
State law imposes several requirements on the guardian. One big requirement is that the guardian keeps accurate books and records of all financial transactions. If a person is appointed by the Court as a guardian for the vulnerable adult and does not maintain careful records, the guardian can be surcharged (meaning fined and penalized) for assets that cannot be accounted for properly. The Court may also impose other types of reporting requirements to benefit the well-being of the ward on behalf of him or her. For those that may not have the time to take on these responsibilities, it may not be wise for them to become a guardian or institute a proceeding to be appointed as one.
I’ve listed below in bullet point format, the disadvantages of a guardianship for you to consider:
- A person’s freedom and basic rights are limited by the decisions of the guardian.
- NJ law requires that a guardian(s) keep accurate books and records of all financial transactions and file annual accountings with the County Surrogates Office.
- If a person is appointed by the Court as a guardian for the vulnerable adult and does not maintain careful records, the Guardian may be surcharged (meaning fined and penalized) for funds and assets that cannot be accounted for properly.
- If a general guardian is not appointed but rather a limited guardianship is appointed for the incapacitated person, the incapacitated or diminished capacity person may still legally retain the power to change his or her estate plan and disinherit the person who seeks the appointment of a guardian.
- A guardianship proceeding may become costly if contested. The alleged incompetent person and/or other family member(s) can contest a proposed guardianship.
- There may be an unnecessary infringement of the alleged incapacitated person’s privacy, freedom and loss of decision-making authority.
- The appointed guardian may over time become overly protective, dominating and arbitrary.
Fredrick P. Niemann Esq.
The benefits and disadvantages of guardianship must be weighed before deciding to proceed. Contact Fredrick P. Niemann, Esq. about the benefits and disadvantages of guardianship in NJ. Call him toll-free at (855) 376-5291 or e-mail him at fniemann@hnlawfirm.com . He welcomes your calls and inquiries, and you’ll find him very approachable and easy to talk to.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, A New Jersey Guardianship Attorney
Guardianship lawyers serving these New Jersey Counties:
Monmouth County, Ocean County, Essex County, Cape May County, Mercer County, Middlesex County, Bergen County, Morris County, Burlington County, Union County, Somerset County, Hudson County, Passaic County