Filing for guardianship in New Jersey can be a complex legal process with many crucial requirements. Donald A. Dennison and Dan Stone, associates in the Elder Law Practice Group at Mandelbaum Barrett PC, recently discussed some of the most common mistakes individuals make when pursuing guardianship. Understanding these pitfalls can help ensure a smoother process and avoid unnecessary legal complications.
Failure to Properly Notify All Parties
One of the most significant mistakes is failing to provide proper notice to all required parties. Under New Jersey law, the alleged incapacitated person (AIP) must be notified, along with their next of kin, including parents, siblings, spouse, and children. Failure to notify all required parties can lead to legal disputes or even the removal of an improperly appointed guardian. In a recent case, Mandelbaum Barrett PC successfully represented a sibling who had not been notified, ultimately resulting in the removal of the original guardian.
Inadequate Medical Evidence
A guardianship complaint must include comprehensive medical evidence proving the AIP’s incapacity. This typically requires a physician or psychologist’s certification demonstrating the AIP’s inability to make decisions due to a medical or mental health condition. A vague or incomplete certification can delay proceedings or lead to dismissal. Depending on the type of guardianship, additional documentation, such as an Individualized Education Program (IEP) for Division of Developmental Disabilities (DDD) guardianships, may also be required.
Overlooking the AIP’s Preferences
Courts in New Jersey consider the AIP’s preferences when appointing a guardian. If the AIP has executed estate planning documents like a living will or power of attorney, these can provide guidance on their wishes. Even if an individual has cognitive impairments, their preferences should be respected unless they are clearly against their best interests. Courts have emphasized that an AIP’s wishes should not be dismissed simply due to forgetfulness or a disability.
Ignoring Less Restrictive Alternative
Guardianship is not always the only or best option. Less restrictive alternatives, such as conservatorships (which focus solely on financial matters and require the AIP’s consent) or limited guardianships (which grant authority over specific areas while preserving certain decision-making rights), may be more appropriate. Every case is unique, and attorneys must carefully evaluate whether a full guardianship is truly necessary.
Neglecting Bonding Requirements
When a guardian is appointed, the court may require them to secure a bond—essentially an insurance policy to protect the AIP’s assets. This financial obligation can be substantial, depending on the AIP’s estate and the relationship between the guardian and the AIP. If a guardian is unable to obtain a bond due to their own financial circumstances, it can create significant delays or even prevent their appointment.
Navigating a guardianship proceeding requires careful attention to legal requirements, including proper notice, comprehensive medical evidence, consideration of the AIP’s preferences, exploration of less restrictive alternatives, and awareness of potential bonding obligations.
If you need guidance with a guardianship filing, the Elder Law attorneys at Mandelbaum Barrett PC are here to help. Contact us today to ensure your guardianship petition is handled correctly from the start.