If you have minor children, it is important to designate someone who will care for your children should the unthinkable happen to you and your spouse. If you do not make this decision ahead of time, the court will make this decision for you should a crisis arise. The court could very well name your eccentric sister who you never imagined raising your children. Guardianship is usually the motivating factor for young couples to make an estate plan.
This is not to be confused with a legal guardianship, which is the appointment of a guardian on behalf of an incapacitated adult. For example, you may wish to have legal guardianship over your adult child with special needs. Without this, you cannot assist your adult child with banking, medical decision making, housing, and the general day-to-day decisions of life. Proper planning by the parents is crucial for a child with a disability or special needs. Proper panning can also benefit siblings who will probably be left with caretaking responsibilities.
A person becomes the guardian of the estate or the guardian of the person by applying to the court and obtaining a determination that the subject individual is incapacitated. You typically need two physicians’ statements to accompany your court application. Once the court determines an individual is incapacitated, the court removes that individual’s rights to make decisions regarding their own affairs. The court does not take this application lightly, as freedoms and liberties are part of our fundamental rights. The court is very cautious not to unnecessarily strip a person of their freedoms and liberties. The court may find that only a limited guardianship is necessary when the individual can manage some, but not all, of their affairs.
Once the court determines a person is incapacitated, the court will then appoint a guardian. The court-appointed guardian is obligated by ethical and statutory rules to make decisions in the individual’s best interest. Applying for guardianship involves motions, court appearances, and a skilled understanding of the law. This can be a confusing process to navigate on your own. We will handle the difficult legal process for you so you can spend your time caring for your loved ones.
2640 Route 70, Building #4
Manasquan, NJ 08736