At 18, all individuals, including those with developmental disabilities, reach the legal age of majority. This means that parents can no longer make decisions legally on behalf of their children, regardless of the nature of their disability and regardless of whether or not they still live with their family.
Some families may want to consider guardianship as an option for their family member. A guardian is defined as “a person or agency appointed by a court to act on behalf of an individual”.
Establishing guardianship is a legal process, and many families turn to the Bureau of Guardianship Services at the Department of Human Services for help with the process. Guardianship, however, can be established without the Bureau’s involvement.
In all cases, guardianship should be viewed as a solution of last resort, because it removes an individual’s fundamental right of self-determination. Before you apply there are alternatives to guardianship that may be appropriate for your family member.
Before You ApplyAs parents consider whether or not to begin an application for guardianship, they should be aware of the following:
- Attendance at school IEP meetings is not dependent on a guardianship relationship. A parent can still be involved in educational planning unless the individual expressly indicates otherwise.
- Parents can still remain involved in medical issues, and might be asked to give consent as next-of-kin in an emergency.
- All applications for guardianship require an up-to-date assessment from either a psychologist or a psychiatrist licensed in the State of New Jersey, or from licensed medical doctor.
- A guardian can be a family member, another interested person, or an agency such as the Bureau of Guardianship Services. A co-guardian can also be named. Co-guardians:
- are more than one person appointed as guardian and each have equal decision-making authority
- must be involved together in all decisions or consents needed for the individual
- the Bureau does not act as co-guardian.
- Once a guardian or co-guardians are appointed by the Superior Court, only the court can modify or change the guardianship order.
General or Limited GuardianshipGuardianship of the person can take one of two forms: General or Limited.
- General Guardianship
- sometimes referred to as ‘plenary’ guardianship
- appropriate for people who have been found incapable of making or expressing any decisions
- Limited Guardianship
- covers decision-making around residential, educational, medical, legal, vocational, and financial issues.
- Appropriate for people who have been found capable of making and expressing some, but not all, decisions
Family OptionsFamilies in New Jersey should be aware that they have the following options in regards to guardianship.
- An individual can appoint a Power of Attorney (POA) to make decisions on his or her behalf.
- Individuals with a disability must be able to understand, on a basic level, that they are appointing someone to make decisions on their behalf.
- An individual appointing a POA must be able to consent to it
- A POA can cover a person and/or property
- A POA can be revoked and/or changed at any time, based on changing needs
- A POA is significantly less costly than a guardianship
- It is best to work through an attorney to establish a POA
- Families may pursue guardianship “Pro Se,” which means “petitioning without attorney.”
- The person seeking guardianship represents himself or herself in court.
i. Eliminates the cost of hiring an attorney to file the petition
ii. Remaining costs include: court fees, guardianship assessments by a psychologist or physician, and the required court-appointed attorney to represent the individual
- This is a great choice for families who can complete the process on their own, especially if the individual is not already under DDD-funded services.
- Forms and instructions can be found at www.judiciary.state.nj.us.
i. Click on “Represent myself in court”
ii. Click on “How to file for guardianship of a developmentally disabled person”
Note: These instructions include the information that two reports must be signed under oath attesting to the individual's need for guardianship, and that one of those reports is submitted by a DDD official, typically the regional administrator. Please be aware that a DDD official is only able to sign such a report if he or she or DDD staff has first hand, personal knowledge of the individual. If this is not the case, then a second affidavit will be needed from a physician or NJ licensed psychologist.
- Families can hire an attorney at their own cost to complete the entire process.
- A relative or other interested party may choose to pursue appointment as guardian privately, at his or her own expense.
i. This is the only option if guardianship is to be of person and property.
- Families can ask the Bureau of Guardianship Services to process a guardianship petition, but…
- approximately 4000 requests are pending currently
- This process is for guardianship of the person only.
- Families seeking guardianship of property should pursue hiring an attorney, as described above.