NJ Mother loses Guardianship due to Boyfriend’s Conduct

A recent judicial opinion made clear that in deciding who to appoint as guardian, New Jersey courts will look not just at the proposed guardians themselves but at the company they keep.

A contested guardianship is one where different people want to be guardian or where the ward doesn’t want a guardian. In the Matter of S.H. was a contested guardianship in which the mother and sister both wanted to be guardian of a young woman with developmental disabilities, named Sarah.

Under New Jersey law, courts should appoint a parent over a sibling. And the Court in this case seemed to find that Sarah’s mother was a loving caretaker and would make an appropriate guardian on her own. However, the Court also found that the mother’s live-in boyfriend was inappropriately touching Sarah. While the touching didn’t rise to the level of sexual abuse, it was excessive enough to cause harm to Sarah, and her mother failed to stop it.

In light of the boyfriend’s behavior, the Court appointed Sarah’s sister as guardian, despite New Jersey’s statutory preference for appointing a parent over a sibling and Sarah’s own statements that she would prefer her mother.

This case sheds light on how New Jersey courts will appoint a guardian, looking not just at the guardians themselves but at company the guardians keep who may affect the ward. While courts also will respect a ward’s autonomy to the extent practicable, the priority is keeping the ward safe from harm, which is the core purpose of a guardianship.

For more information on guardianships see our prior blog posts and Practice Areas page, or email or call us at (908) 704-1900.

New Jersey Guardianship for a Vulnerable Adult

When seniors suffer from Alzheimer’s, dementia or other mental ailments, they can become vulnerable to exploitation.

We have seen folks have their accounts drained by new “friends” and lovers, become the victim of obvious scams, make terrible financial decisions on the advice of self-serving salesmen, and plow through their savings buying needless items from home shopping outlets.

The thing is, usually these are folks who have always been responsible in the past. They don’t recognize that their judgment is now being clouded by illness. They worked hard to make their money, and they won’t have anyone else tell them what to do with it.

If any of this sounds familiar with your parent or spouse, then you may wish to apply for guardianship.

A guardianship is a protective arrangement ordered by a court, in which a guardian is appointed to make decisions for a ward. The guardian can take control of the ward’s finances or prohibit certain people from visiting.

To appoint a guardian, the court must find that the ward lacks capacity. “Capacity” means having the mental wherewithal to make serious decisions and understand their consequences. Not having capacity due to an illness is called being “incapacitated.”

If you are seeking guardianship over someone, you will have to prove he is incapacitated. You must submit affidavits from two doctors who have recently examined the person (the court can order an examination if the person refuses). The court will assign the person his own lawyer, who will interview him and advocate for what he wants.

Appointing a guardian is a radical measure that takes away a person’s autonomy, so courts do so only where necessary, and in the least restrictive manner possible. The court can create a limited guardianship – for example, where the guardian only has power over certain financial accounts, or limited amounts. In an emergency situation, the court can also freeze bank accounts and appoint a temporary guardian.

If you are interested in applying for guardianship for a vulnerable adult, we are here to help. Call us today at (908) 704-1900 for more information.

New Jersey Guardianships for Children with Developmental Disabilities

If you have a child with developmental disabilities, you should consider applying to be his guardian when he reaches age 18. At age 18, a child becomes a legal adult and a parent can no longer make decisions for him, regardless of the child’s disabilities or whether he lives with parents. Without a guardianship, banks, hospitals, schools, government agencies and other institutions will have to follow your adult child’s instructions and not yours.

A guardianship is a protective arrangement ordered by a court, in which a guardian is appointed to make decisions for a ward. The guardian’s judgment is substituted for the ward’s, similar to a parent’s power over a child.

To appoint a guardian, the court must find that the ward lacks capacity. “Capacity” means having the mental ability to make serious decisions and understand their consequences. If a person lacks capacity due to a disability or illness, then the person is “incapacitated.”

Since guardianship involves taking away a person’s fundamental autonomy to make decisions for himself, courts are reluctant to appoint a guardian, and there are safeguards in place. The person who wants to be guardian has to prove that the ward is actually incapacitated. You will have to submit affidavits from two doctors who have recently examined your child. Your child will also be assigned a lawyer, who will interview your child and advocate for what he wants.

If your child is able to make some decisions but not others, the court can create a limited guardianship. For example, the guardian might make serious decisions such as on medical and financial issues, but the ward retains autonomy over everyday decisions. Some guardianships also leave specific powers to the ward, such as the right to vote, marry or make a will. In an emergency situation, the court can appoint an immediate temporary guardian or order a specific transaction or other protective arrangement.

If you are interested in applying for guardianship over your child with developmental disabilities, we are here to help. Call us today at (908) 704-1900 for an appointment.

Should You Become Guardian for Your Special Needs Child?

[While this article focuses on guardianship for special needs children, similar considerations arise when a spouse, parent, or other loved one’s ability to make important decisions is impaired by dementia, traumatic brain injury, or other condition. We address such guardianships throughout, particularly in the elder law articles and practice area pages. We also plan a future blog post on that topic.]

Why should you consider putting time and money into applying for guardianship over your son or daughter with disabilities? After all, you are the parent; isn’t that enough? In a word, no.

Parents have the right to make major decisions for the child and obtain confidential information regarding a child’s health, finances, education, etc. while the child is a minor (typically under age 18). However, once your son or daughter becomes an adult (18 and over in most states), you no longer are entitled to most information subject to privacy laws, and health care providers may require your child’s consent to provide non-emergency medical treatments. While this dichotomy is understandable as children without disabilities become adults, how can you protect your child if he/she can’t make significant decisions or give informed consent to medical care or release of records? That’s where guardianship comes in.

A guardian controls health care, residence, and other major concerns of a person for whom he is guardian (“ward”) in similar manner to a parent’s authority over a minor child. However, to become guardian, a parent must prove the child can’t make important decisions. In New Jersey and New York (as well as most other states) a parent who seeks guardianship must apply to the courts and support his/her guardianship claim with doctor/psychologist evaluations. While the child has an opportunity to contest the application, opposition is uncommon and the court typically appoints the applicant as guardian. As court appointed guardian, you can make important decisions to further the safety and welfare of your child with serious disabilities.

Nevertheless, guardianship isn’t for everyone. If your child has only physical disabilities or otherwise can make major decisions guardianship would not be appropriate. If you are unsure whether your child with disabilities needs a guardian, we can guide you through this crucial concern. FriedmanLaw has helped countless families obtain guardianship over a loved one with diminished capacities.

As this website provides general information and isn’t tailored to your particular situation, it doesn’t constitute legal advice and may not take into account rules and exceptions that affect you. Although updated from time to time, this website may not take account of recent legal developments or differences in laws from state to state. For safety sake, obtain individual legal advice before you act! You assume all risk of acting on information contained in this website. This website doesn’t constitute legal advice, and no attorney-client relationship exists unless FriedmanLaw and you execute a written engagement agreement. Please contact us at 908-704-1900 to discuss engaging FriedmanLaw to help resolve your legal concerns.
Homepage photo: Cows grazing at Meadowbrook Farm, Bernardsville, NJ by Siddharth Mallya. October 23, 2012.
Interior photo: Somerset hills pastoral scene by Lawrence Friedman.