New Jersey Adult Guardianship: A Complete Legal Guide

Understanding the Process of Protecting

Your Loved One Under New Jersey Law

When someone you love can no longer make safe decisions about their health, finances, or daily life due to dementia, developmental disability, mental illness, or other impairments, New Jersey guardianship may provide the legal framework your family needs. This comprehensive guide explains everything you need to know about the New Jersey guardianship process—from determining whether guardianship is necessary to fulfilling your duties after appointment.

What Is Adult Guardianship in New Jersey?

Adult guardianship is a legal proceeding in which a New Jersey Superior Court determines that an individual—known as the "alleged incapacitated person" or AIP—lacks the ability to make informed decisions about their personal care, finances, or both. When the court makes this determination, it appoints a guardian to make decisions on that person's behalf.

Guardianship is governed by N.J.S.A. 3B:12-24.1 and New Jersey Court Rule 4:86. Under these statutes, an "incapacitated individual" is someone who is impaired by mental illness, mental deficiency, physical illness or disability, chronic drug use, chronic alcoholism, or developmental disability to the extent that they lack sufficient capacity to govern themselves and manage their affairs.

Because guardianship removes fundamental constitutional rights from an individual—including the right to make their own medical decisions, control their finances, vote, marry, and determine where they live—New Jersey courts treat it as a measure of last resort. The standard of proof required is "clear and convincing evidence," and courts must always consider whether less restrictive alternatives exist.

Types of Guardianship in New Jersey

New Jersey law recognizes several types of guardianship, allowing courts to tailor the arrangement to the individual's specific circumstances and needs.

Guardianship of the Person

A guardian of the person makes decisions about the incapacitated individual's personal welfare, including healthcare, living arrangements, daily care, and safety. This type of guardian does not control financial matters, except for signing applications for benefits and entitlements.

Guardianship of the Estate

A guardian of the estate (sometimes called guardian of the property) manages the incapacitated individual's financial affairs. Responsibilities include managing bank accounts, paying bills, overseeing investments, filing tax returns, and protecting assets. Guardians of the estate must typically post a surety bond to protect against mismanagement and are required to file detailed inventories and periodic accountings with the court.

General (Plenary) Guardianship

General guardianship grants full authority over both the person and the estate. This is appropriate when an individual cannot make any meaningful decisions in either domain. For example, a person in the advanced stages of Alzheimer's disease who cannot communicate preferences or manage any aspect of their life.

Limited Guardianship

New Jersey courts increasingly favor limited guardianship when an individual retains some decision-making capacity. Under N.J.S.A. 3B:12-24.1(b), a limited guardian is granted authority only over specific areas where the individual lacks capacity, such as medical decisions, financial management, residential decisions, or educational and vocational matters. The individual retains rights in all areas not specifically delegated to the guardian.

Why Limited Guardianship Matters

Limited guardianship preserves the individual's dignity and right to self-determination to the greatest extent possible. For young adults with developmental disabilities who are turning 18, limited guardianship often allows them to maintain independence in areas where they can function—such as choosing their daily activities, maintaining friendships, or making employment decisions—while receiving support in areas where they need assistance, such as complex medical or financial decisions.

Alternatives to Guardianship: Less Restrictive Options

Before pursuing guardianship, families should consider whether less restrictive alternatives might meet their loved one's needs. New Jersey law requires that guardianship be used only when no less restrictive arrangement is appropriate.

Power of Attorney

A durable power of attorney allows an individual to appoint someone to make financial and legal decisions on their behalf. Unlike guardianship, this document must be signed while the individual still has legal capacity—meaning it cannot be executed after someone becomes incapacitated. If your loved one executed a power of attorney before losing capacity, this may eliminate the need for guardianship of the estate.

Healthcare Proxy and Advance Directives

A healthcare proxy (or healthcare power of attorney) designates someone to make medical decisions if the individual becomes unable to do so. Combined with an advance directive or living will, these documents can address healthcare decisions without requiring court intervention.

Representative Payee

For individuals whose primary income is Social Security or other federal benefits, a representative payee arrangement allows someone to receive and manage those benefits on the individual's behalf. This is a less restrictive option for managing limited income streams.

Supported Decision-Making

Supported decision-making is an emerging alternative that allows individuals with disabilities to receive assistance in understanding and making decisions while retaining their legal rights. Rather than replacing the individual's decision-making, supporters help explain options and consequences.

Conservatorship

In New Jersey, a conservatorship is a voluntary arrangement for individuals who are physically incapacitated but still mentally competent. The individual must consent to having a conservator appointed to help manage their financial affairs.

The New Jersey Guardianship Process: Step by Step

Filing for guardianship in New Jersey involves multiple procedural requirements. Understanding each step helps families prepare for what can be a complex legal process.

🪜 Step 1: Obtain Medical Certifications

Before filing, you must obtain affidavits or certifications from two physicians, or one physician and one licensed psychologist. Each must personally examine the alleged incapacitated person within 30 days of filing the complaint. The certifications must address the individual's diagnosis, prognosis, cognitive functioning, ability to make decisions, and functional limitations. These certifications are the medical foundation of your case.

🪜Step 2: Prepare and File the Verified Complaint with Supporting Documents

The guardianship action is filed in the Superior Court, Chancery Division, Probate Part, in the county where the alleged incapacitated person resides. Under Rule 4:86-1, the verified complaint must include: the AIP's name, age, and domicile; the petitioner's relationship to the AIP and interest in the matter; the reasons guardianship is needed; the nature and extent of the AIP's functional limitations; information about the AIP's living arrangements; financial information; names and addresses of the AIP's spouse, children, parents, and next of kin; and the proposed guardian. The complaint is filed with the County Surrogate, who serves as Deputy Clerk of the Superior Court for probate matters.

Along with the verified complaint, you must file: the two clinical affidavits or certifications; a Case Information Statement (CIS); a certification of the AIP's assets; a certification of the proposed guardian's criminal and civil judgment history; proposed orders and judgment; and the required filing fee.

🪜Step 3: Background Screening of Proposed Guardian

Since May 2021, New Jersey requires background screening for most proposed guardians. This includes fingerprinting coordinated through the County Sheriff's department (for NJ residents) and criminal background checks. Certain categories of proposed guardians are presumptively exempt, including parents of developmentally disabled adults and attorneys in good standing.

🪜Step 4: Court Appoints Attorney for the AIP

To protect the alleged incapacitated person's due process rights, the court appoints an independent attorney to represent them. This attorney will meet with the AIP, review the medical certifications, investigate whether less restrictive alternatives exist, and file a written report with the court or make recommendations at the hearing. The court-appointed attorney may support, oppose, or propose modifications to the guardianship application.

🪜Step 5: Serve Notice on All Interested Parties

Under Rule 4:86-4, proper notice must be provided to: the alleged incapacitated person (personal service required); the AIP's spouse, adult children, parents, and other close relatives; the administrator of any residential facility where the AIP lives; and any agency involved in the AIP's care, such as the NJ Division of Developmental Disabilities. Defective service can result in adjournment of the hearing.

🪜Step 6: The Guardianship Hearing

The hearing takes place before a Superior Court judge. In uncontested cases where the court-appointed attorney does not dispute the need for guardianship or the fitness of the proposed guardian, the matter may be resolved summarily without a full hearing. In contested cases, the court will take testimony from the petitioner, consider the medical certifications, hear from the court-appointed attorney, and receive any objections from family members or other interested parties. Live expert testimony and cross-examination may be required.

🪜Step 7: Judgment and Qualification

If the court finds by clear and convincing evidence that the individual is incapacitated, it will issue a Judgment of Incapacity and Appointment of Guardian. The appointed guardian must then qualify with the County Surrogate by signing acceptance documents, completing required training through the Guardianship Monitoring Program, posting a surety bond (for guardians of the estate), and taking an oath of office. Upon qualification, the Surrogate issues Letters of Guardianship—the legal proof of the guardian's authority to act.

How Long Does Guardianship Take in New Jersey?

The timeline for a New Jersey guardianship case depends on whether the matter is contested and the complexity of the circumstances. Below is a table of typical timelines, but it is important to note that each case is different and many fall outside of these typical timelines.

Case Type	Typical Timeline
Uncontested guardianship (standard)	6–10 weeks from filing
Contested guardianship	Several months to over a year
Emergency/temporary guardianship	Days to weeks (interim protection)
DDD-facilitated guardianship	8–12 months (includes assessment process)

Factors that can extend the timeline include incomplete filings, difficulty obtaining medical certifications, service issues, objections from family members, and court scheduling constraints.

What Does Guardianship Cost in New Jersey?

Guardianship involves multiple costs, including court filing fees, medical examination fees, attorney fees for the petitioner, attorney fees for the court-appointed attorney (which may be payable from the AIP's estate), and surety bond premiums for guardians of the estate.

In straightforward, uncontested cases, legal fees typically range from several thousand dollars. Contested matters requiring litigation, expert testimony, and multiple hearings cost significantly more. The court has discretion to award attorney fees from the estate of the alleged incapacitated person, considering factors such as the size of the estate and the merit of each party's position.

For families of individuals enrolled in or eligible for services through the Division of Developmental Disabilities (DDD), DDD can facilitate the court action at no charge for legal costs, though this option is limited to guardianship of the person only.

Duties and Responsibilities After Appointment

Guardianship is not a one-time event—it creates ongoing legal obligations that continue until the guardianship is terminated.

Guardian of the Person Responsibilities

• Ensure safe and appropriate living arrangements

• Coordinate and make decisions about medical care

• Advocate for necessary services and supports

• Make decisions about education and vocational activities (in limited guardianships where applicable)

• Act in the ward's best interest at all times

• File annual reports as required by the Guardianship Monitoring Program

Guardian of the Estate Responsibilities

• File an initial inventory of all assets within 60 days of qualification

• Manage financial affairs prudently and in the ward's best interest

• Maintain detailed records of all income, expenses, and transactions

• File periodic accountings as ordered by the court

• Seek court approval for extraordinary transactions (such as selling real estate)

• Comply with the Guardianship Monitoring Program's oversight requirements

The Guardianship Monitoring Program (GMP)

The New Jersey Judiciary's Guardianship Monitoring Program provides oversight of court-appointed guardians. The GMP reviews reports and documents to ensure guardians are fulfilling their duties properly and in the best interest of incapacitated adults. Failure to comply with reporting requirements can result in sanctions, removal, and personal liability.

Can Guardianship Be Modified or Terminated?

Yes. Under N.J.S.A. 3B:12-28 and Rule 4:86-7, an incapacitated person, the guardian, or any interested party can petition the court to modify or terminate a guardianship. The petition must include at least one affidavit from a physician, psychologist, or other qualified professional stating that the individual has returned to full or partial capacity.

If the court is satisfied that the person has recovered their ability to make rational decisions and manage their affairs, it can restore their civil rights and control over their estate. Guardianship can also be modified—for example, converting a general guardianship to a limited guardianship if the individual has developed or regained capacity in certain areas.

Frequently Asked Questions About New Jersey Guardianship

Who can serve as a guardian in New Jersey?

Any competent adult can serve as guardian, including family members, friends, or professional guardians. Courts typically give preference to close family members—spouse, adult children, or parents—but will consider the fitness and appropriateness of any proposed guardian. The proposed guardian must pass a background screening process and demonstrate the ability to fulfill the duties of the role.

What if family members disagree about guardianship?

Family disputes about guardianship—including who should serve as guardian or whether guardianship is needed at all—can lead to contested proceedings. The court will consider the best interests of the alleged incapacitated person when resolving disputes. In some cases, the court may appoint a neutral third party or professional guardian.

Can a guardian be removed?

Yes. If a guardian fails to fulfill their duties, acts improperly, or is no longer suitable, the court can remove them upon petition by an interested party. Grounds for removal include mismanagement of assets, failure to file required reports, neglect of the ward's needs, or any breach of fiduciary duty. A guardian can also be removed if the incapacitated person regains their capacity.

What is the difference between guardianship and conservatorship in New Jersey?

In New Jersey, a conservatorship is more limited than a guardianship and is voluntary—the person must consent to the arrangement because they recognize they need help. A conservator manages only financial matters for someone who is physically incapacitated but mentally competent. Guardianship, by contrast, is imposed by the court when an individual lacks the mental capacity to make decisions.

Does the alleged incapacitated person have to attend the hearing?

Under N.J.S.A. 3B:12-24.1(e), the alleged incapacitated person must appear in court unless the petitioner and the court-appointed attorney certify that they are unable to appear due to physical or mental incapacity.

My parent has dementia but signed a power of attorney years ago. Do I still need guardianship?

If the power of attorney is durable (meaning it remains effective after incapacity) and grants sufficient authority, you may not need guardianship. However, even when if there is a durable power of attorney, a guardianship may be necessary or beneficial. For instance, if the power of attorney is limited in scope, has been challenged, or if third parties refuse to honor it, guardianship may be necessary to ensure you have clear legal authority.

Protecting Your Loved One Starts with the Right Legal Guidance

Navigating the guardianship process in New Jersey requires understanding complex legal requirements and court procedures. At Kemeny, Ramp & Renaud, LLC, we guide families through every step - from evaluating whether guardianship is appropriate to fulfilling post-appointment duties. Contact us today to schedule a consultation with one of our New Jersey guardianship attorneys.

Why Choose Kemeny, Ramp & Renaud, LLC for Your Guardianship Matter

Guardianship cases involve high stakes: your loved one's safety, their dignity, their finances, and your family's peace of mind. Our attorneys bring clarity, compassion, and legal precision to each case. We represent petitioners seeking guardianship, alleged incapacitated persons who need advocacy, and families navigating contested proceedings.

Whether you are an adult child concerned about an aging parent, a family seeking to protect a developmentally disabled young adult turning 18, or facing a contested guardianship dispute, we provide the experienced legal guidance you need throughout New Jersey.

Contact Kemeny, Ramp & Renaud, LLC today to discuss your situation.