Special Needs
Guardianship for a Vulnerable Adult
Alzheimer’s disease, dementia and other mental ailments can lead to exploitation. Accounts may be drained by new “friends” and lovers and vulnerable adults may fall prey to obvious scams, make terrible financial decisions on the advice of self-serving salesmen, or plow through their savings buying needless items from home shopping outlets.
The thing is, these victims often are folks who have always been responsible in the past. They don’t recognize that their judgment is now clouded by illness. They worked hard to make their money, and they won’t have anyone else tell them what to do with it.
Seniors in this situation may also refuse necessary medical care, insisting on their autonomy even when it’s obviously unsafe.
If any of this sounds familiar, let us explain how guardianship may allow you to protect your loved ones who suffer diminished capacity.
What is a guardianship?
A court ordered arrangement to protect an individual who can’t make essential decisions for himself (the “ward”). The court may give a guardian authority to manage the ward’s savings and investments, arrange medical care, and supervise living arrangements. A judge may give the guardian full or “plenary” powers to make all decisions for the ward or the court may limit the guardian’s powers where the ward retains some capacity. The court can also order specific protective arrangements, such as freezing a bank account where the ward is being exploited, or authorizing a spouse to sign a retirement agreement when the ward refuses to do so.
Who can serve as guardian?
Any trustworthy adult willing to take responsibility for the ward.
Courts normally appoint spouses, descendants, and/or siblings as guardians, but only if they seem responsible. The court won’t appoint someone who likely won’t keep the ward safe and look out for the ward’s best interests. Where family isn’t available, the court can appoint as guardian a friend, professional, non-profit or government agency. In New Jersey, the Office of the Public Guardian may serve for vulnerable persons over age 60. A person can have more than one guardian (co-guardians).
How do I become my parent / spouse’s guardian?
By applying to court. Your lawyer submits detailed legal papers that explain why the alleged incapacitated person (“AIP”) needs a guardian, and why you should be appointed. You also submit sworn statements from two doctors who have examined the AIP and found he/she lacks capacity.
The court then appoints a lawyer for the AIP. This court-appointed attorney interviews the AIP and proposed guardians (i.e., you), and reports to the court on what the AIP wants, whether the AIP needs a guardian, and whether you would be appropriate in that role. The court-appointed attorney must determine whether the AIP has any wishes regarding guardianship, and if so, advocate for those wishes (unless they would present a danger to the AIP).
The court may then hold a hearing, where the judge will talk with the proposed guardians and the AIP and decide what to do. When there is disagreement over whether the AIP should have a guardian or who should be guardian, then there may be more hearings or a trial. The AIP always has a right to demand a trial if he doesn’t want a guardian.
FriedmanLaw is here to help you apply for guardianship. Our lawyers have brought many guardianship cases and even frequently serve as court-appointed attorney. Call or email us today for specific information on your situation.
Glossary
Guardian – Person appointed to make decisions for a ward.
Ward – Person for whom the guardian is appointed. A court can only appoint a guardian if it finds that the ward is incapacitated.
Capacity – Ability to responsibly make serious decisions and understand their consequences.
Incapacitated person – Someone who lacks mental capacity to make serious decisions. Incapacitated older adults usually suffer from Alzheimer’s disease, dementia, schizophrenia, bipolar disorder or other mental or degenerative illness.
AIP – alleged incapacitated person. During a guardianship proceeding, this is the person over whom guardianship is sought. Since the court hasn’t yet made a decision on whether the person is incapacitated, the person is alleged to be incapacitated.
