Guardianship: It’s Not Simply for the Elderly

As your child with special needs approaches the age of 18, it is very important to consider whether applying for guardianship is appropriate. If the child is not able to handle his or her own medical or financial decisions as a result of his or her special needs issues, you as a parent should apply to become legal guardian of the child. Once a child obtains the age of 18, a parent has no legal right to make decisions on behalf of his or her child.

In order to retain control of decisions related to the child, parents must be named guardian of the person and property of the child. In New Jersey, limited guardianships are also an option. This permits guardians to be named to assist a child where needed without taking full control away from the child. For example, a limited guardianship could permit a child to obtain a drivers license, to retain control over a bank account with some set dollar amount or to make or participate in medical decisions.

Alternatively, a full guardianship gives complete control and total decision-making power over the child and his or her finances to a parent or other named individual. In New Jersey, judges will not build in successor guardians when naming guardians, so often families will name multiple individuals as guardians from the inception (such as both parents, or both parents and an adult sibling together).

A guardianship action begins with the filing of a complaint with the Court requesting that a guardian be named. Two affidavits must be submitted with the Complaint. These must either come from two doctors or psychologists, or if the child with special needs is registered with the Division of Developmental Disabilities (“DDD”), an affidavit from DDD can replace one of the two above referenced affidavits. The affidavits must be signed, and the child must have been seen by the doctor or doctors within thirty days of the filing.

A court appointed attorney will be named to represent the child with special needs and advocate on his or her behalf. That attorney will review the medical records of the child with special needs, will meet with the child with special needs and the proposed guardian or guardians, and will prepare a report of his or her opinion regarding the motion for guardianship. Some judges require the motion for a guardian to be named to be heard in Court, with the proposed guardian present, and others will respond on the papers with respect to the motion.

It is important for you to anticipate that the guardianship process from start to finish will take approximately three to six months, so this should be started before the child turns age 18. A guardian will not be named until the child reaches 18, however, so the action cannot be commenced too early either.

Unfortunately, many parents do not think to get this process moving until there are extenuating circumstances (such as the need for urgent medical care or hospitalization). While the courts will appoint a temporary guardian on an expedited basis where an emergency exists, even these can take several weeks to complete.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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