The Judiciary provides instructions and resources for people who want to seek guardianship for an incapacitated person.
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The Superior Court can assign a guardian to care for an adult who cannot care for themselves. First, the court must determine whether a person is incapacitated. Until the court decides, the person is an alleged incapacitated person (AIP). After the court determines incapacitation, they become a protected person or ward.
Examples of incapacitation include:
- Mental illness or deficiency.
- Physical illness or disability.
- Chronic drug use.
- Chronic alcoholism.
- Developmental disability.
There are three types of guardianship:
- Guardianship of the person and estate. The guardian is responsible for the individual’s healthcare and financial management. This applies when the ward also has assets that qualify as an estate.
- Guardianship of the person only. This applies when the ward needs to be looked after but does not have assets to manage.
- Guardianship of the estate only. The guardian only manages the ward’s financial affairs.
The court determines if the individual needs general or limited guardianship.
- General Guardianship. The guardian can exercise all rights and powers of the incapacitated person.
- Limited Guardianship. The guardian’s role is less intrusive and more individualized.
Forms and the Guardianship Process
If you are seeking to represent yourself in a guardianship case, please visit our self-help resources page.
The Civil Division, Superior Court works with county surrogates in guardianship cases. The initial guardianship request is filed with the county surrogate’s office. A Superior Court judge then hears and decides on the case. If incapacitation is determined, the court-appointed guardian must qualify with the county surrogate.
Potential guardians can file for a standard guardianship. If the AIP is eligible for benefits from the Division of Developmental Disabilities (DDD), there are special filing instructions.
The alleged incapacitation person needs to be examined by a doctor. A second doctor or psychologist must also certify the condition. The following forms are required in standard guardianships:
- Certification of Physician or Psychologist (2). A doctor must certify the AIP’s condition. A second doctor or psychologist needs certify the condition. The personal examinations must be within 30 days of filing. You will complete the top section. The health professional(s) will complete the rest of the form
- Case Information Sheet (CIS). This form outlines the details of the case. Instructions are provided with the form.
- Certification of Assets. This form lists all property and income of the AIP.
- Certification of Criminal and Civil Judgment History. This form lists the criminal and civil history of the potential guardian.
- Order Fixing Guardianship Hearing Date. The court needs to set a court date and assign an attorney for the AIP.
- Judgment of Incapacity and Appointment of Guardian(s) of the Person and Estate, or
- Judgment of Incapacity and Appointment of Guardian(s) of the Person.
For DDD eligible AIPs, the guardian will complete either of these two packets:
- How to Apply for the Guardianship of the Person and Estate
- How to Apply for the Guardianship of a Person Only
All guardianship cases require a fee of $200.
After filing, the court will appoint an attorney to represent the AIP and set a court date. Attorneys will need to follow the Guidelines for Court-Appointed Attorneys in Guardianship Matters and complete the Report of Court-Appointed Counsel for the Alleged Incapacitated Person.
During the hearing the potential guardian must prove incapacitation. If successful, the judge completes the judgment of incapacity and appoints the guardian(s).
Court-appointed guardians must then qualify with the county surrogate. The guardian needs to affirm their willingness and ability to act as guardian. Once they qualify, they receive Letters of Guardianship. These are the official documents authorizing the person(s) to act as guardian.
Guardians will also purchase short certificates. These are shortened versions of the Letters of Guardianship that can be given as proof of guardianship.
Guardians of the estate receive compensation. The amount guardians are paid is based on the total value of the estate. Guardians can also receive a percentage of any income earned by the estate.
Guardianship Monitoring Program and Oversight
The Guardianship Monitoring Program (GMP) provides an ongoing relationship between the guardians and the courts.
Guardians are typically loving family members or friends. At times, an attorney can act as guardian. Most guardians care for and protect their ward. However, the authority entrusted to guardians can create opportunities for abuse. The court system is devoted to eliminating those opportunities.
Qualified volunteers in the GMP track and report guardian actions. Volunteers enter information in the Guardianship Monitoring System (GMS). The GMS is a statewide database used by all counties to track guardian activities.
Volunteers review guardian reports, financial records, doctor certifications and more. They compare the reports to original case files. This helps identify discrepancies that could signal abuse. In these instances, GMP volunteers file reports with the court. Typically, they go to the judge who originally heard the case. The reports will include recommendations for disciplinary actions.
Guardians are required to treat their wards with dignity and integrity. They must follow all court rules and file periodic reports. These reports include:
- Report of Guardian Cover Page. This form is required with all guardian reports. It provides summary information about the guardianship. This includes any changes or updates to the ward’s condition or estate.
- Report of Well-Being. A report to keep the court informed of protected person’s overall care.
- Certificate of Examining Professional. This form is completed and filed in the initial guardianship request. Updated certifications are required. These helps alert the court of any changes in the protected person’s health conditions.
- EZ Accounting Form and additional pages. This form is for simple accounting, typically when there is no estate or a very small estate.
- Comprehensive Accounting Form. This report is for more complex estates.
Guardians are required to complete Certification of Assets when filing for guardianship. After guardianship is established, they must complete the Guardian Inventory. Volunteers can then compare the accounting forms to these initial forms to identify any issues regarding the estate.
Due to the complex nature of guardianship monitoring, volunteers need specialized skill sets. Volunteers should have experience or interest in learning how to read and understand legal documents. Volunteers can also have experience or interest in understanding financial documents. Qualified volunteers will also be interviewed to determine their ability to serve in this function.
The court considers itself legally responsible to care for protected persons. From the very start of the process, the court’s goal is what’s in the best interest of the AIP/protected person. This starts with appointing counsel to represent the AIP. The assigned attorney must be a “zealous advocate” for their client.
Guardians of the Estate may also be required to post a surety bond. This helps protect the ward’s assets. The surety bond can be paid from the estate. If the guardian violates the terms of the guardianship, the bond company can sue them for the bond amount.
The ward’s friends and family have the right see if the person is being treated fairly. They can ask the court to review financial records.
Interested parties can use the Motion Kit to file with the court.
Examples of guardianship motions:
- Modify guardianship protection.
- Modify reporting requirements.
- Review a guardian’s conduct.
- Review a guardianship.
The alleged incapacitated person (or AIP) is the individual over whom the plaintiff(s) is/are seeking guardianship.
A certification is a statement that certain facts are true to the best of the knowledge of the person making the statement. It is like an affidavit, but it is not sworn before a notary or other authorized person.
The county of settlement is the county responsible for a share of the charge incurred for services provided to persons unable to pay. Typically, this is the AIP’s county of residence at the time of application for DDD services. However, it is possible that the county of residence and county of settlement may be different depending on the residential history of the AIP.
The county surrogate is an elected Constitutional Officer who serves as judge of the Surrogate’s Court for uncontested probate and estate matters. A Surrogate also serves as Deputy Clerk to the Superior Court for the Probate Part, including guardianships of incapacitated adults, as well as adoptions in the Family Part.
A docket number is the number the court assigns to your case so that it may be identified and located easily. Once you have a docket number, you must include it on all your communications with the court.
To file means to give the correct forms and fee to the court to begin the court’s consideration of your request.
General guardianship is a “complete in every respect” type of guardianship in which the guardian is able to exercise all rights and powers of the incapacitated person in terms of the area of responsibility he or she is granted. Also known as full or plenary guardianship.
A guardian is an individual appointed by the court with authority over the person and/or the estate of an adjudicated incapacitated person. A guardian may have general or limited authority.
An individual appointed by the court to handle the financial affairs of another person who has been adjudicated incapacitated. Unlike a guardian of the person, a guardian of the estate is not responsible for decisions regarding the personal well-being of the protected person. Rather, the guardian of the estate handles assets, income, expenses and liabilities.
An individual appointed by the court to handle the personal affairs of another person who has been adjudicated incapacitated. Unlike a guardian of the estate, a guardian of the person does not manage the financial affairs of the incapacitated person, except that a guardian of the person may serve as representative payee for Social Security benefits.
In New Jersey, the Guardianship Monitoring Program is a statewide monitoring program implemented in all 21 counties as of 2014. Through the GMP, trained volunteers review the reports filed by guardians of incapacitated persons and flag issues that require further attention.
An individual adjudicated by the court as unable to govern himself or herself and/or unable to manage his or her affairs. Also known as a protected person or ward. Formerly referred to as an incompetent.
Inability to govern oneself and/or to manage one’s affairs. Incapacity may be general (as to all areas) or limited (as to specific areas only).
A person or agency that has an involvement with the incapacitated person who is the subject of the guardianship. Interested parties (or parties in interest) are typically the same individuals entitled to notice of the initial application for guardianship – i.e., the incapacitated person’s spouse, parent, adult child, county of settlement, DDD.
The official decision of a court in a case. For purposes of guardianship, Judgment refers to the Judgment of Incapacity and Guardian Appointment, also known as the Judgment of Incapacity and Order Appointing Guardian.
Letters of Guardianship are documents issued by the County Surrogate upon an individual’s qualification as guardian, after the entry of a Judgment by the Superior Court.
A less intrusive, more individualized, type of guardianship in which a guardian is appointed with authority as to some – but not all – areas. A limited guardianship is established based upon a court’s finding that the person alleged to be incapacitated lacks the capacity to do some, but not all, of the tasks necessary to care for himself or herself.
Proof of Service is documentation showing that parties actually received the papers that you sent to them. Service is established for all parties other than the alleged incapacitated person by a certification that the documents were sent by regular mail and certified mail, and the regular mail was not returned to you. If the signed return receipt (green cards) are received, these may be attached to the certification of service. As to the alleged incapacitated person, you must file a certification stating that he or she was personally served.
A process conducted before the County Surrogate, or Surrogate’s staff, following entry of a Judgment of Incapacity and Guardian Appointment. As part of qualification, the person appointed as guardian affirms his or her willingness to fulfill the duties of a guardian. If a bond is required, the bond must be posted in order for the guardian to qualify and obtain Letters of Guardianship.
Assets over which a guardian of the estate does not exercise full control. The most common restricted asset is real property. The restriction can be found in the Judgment and sometimes the Letters of Guardianship. It typically provides that the guardian of the estate “cannot sell, transfer, mortgage, or otherwise encumber the real property of the incapacitated person absent court approval.”
Delivery of papers in a legally appropriate way. For example, notice of an application for appointment of a guardian is served upon the alleged incapacitated person by personal service, meaning that copies of the papers are personally delivered.
Short forms of the Letters of Guardianship, stating that by judgment of a particular date, the guardian was appointed with authority of the person and/or estate of the named incapacitated person. A short certificate will state that as of the date it was issued, the guardianship remains in effect. Additional short certificates may be purchased by a guardian, from the Surrogate, for $5.00 each as long as the guardianship remains in effect. Unlike the original Letters of Guardianship, short certificates should be provided to doctors, care facilities, and other institutions that require proof of a guardian’s authority.
For purposes of guardianships, the judge of the Superior Court, Probate Part, who decides if the alleged incapacitated person is in fact incapacitated and in need of a guardian. The Superior Court judge makes the substantive decisions about the guardianship, including the determination of capacity and the choice of guardian. The Superior Court judge conducts any hearing(s) and signs the Judgment of Incapacity and Guardian Appointment.
A contract between at least three parties: the obligee (the party who is the recipient of an obligation), the principal (the primary party who will perform the contractual obligation) and the surety (who assures the obligee that the principal can perform the task). A bond functions much like an insurance policy so that if the guardian of the estate steals or misuses the money, or makes some other mistake, the incapacitated person will be protected. The price of that insurance policy (the bond premium) can be paid from the guardianship estate.
A county office headed by the County Surrogate that may be in the same location as the Superior Court or may be in a different location. The Surrogate’s Court is the filing court for Probate Part actions, including actions to appoint a guardian. It is also where the guardian goes to qualify after entry of the Judgment.
A verified complaint is a sworn document in which the plaintiff tells the court the facts of the case and states what relief is sought.