Guardianship of the Person
http://www.judiciary.state.nj.us/guardianship/Guardianship_Person_web.pdf
TABLE OF CONTENTS
1. INTRODUCTION ........................... 1
1.1 Guiding Principles ........................ 1
1.2 Responsibilities of a Guardian of
the Person ..................................... 2
1.3 Letters of Guardianship ............... 2
1.4 Short Certificates ......................... 2
2. SUBSTITUTED JUDGMENT/BEST
INTEREST ................................. 3
2.1 Substituted Judgment .................. 3
2.2 Best Interest Standard ................. 4
2.3 Tough Decisions ........................... 4
3. INCAPACITATED PERSON’S
RIGHTS .................................... 5
4. COORDINATING SERVICES ........... 5
5. MEDICAL CONSIDERATIONS ........ 6
5.1 Informed Consent ......................... 7
5.2 Determine Conditions .................. 7
5.3 Protected Person’s Preference ...... 7
5.4. Alternatives and Timing of
Decision-Making ........................... 7
5.5 Least Restrictive Decision ............ 8
5.6 Additional Opinions ..................... 9
5.7 Seek Resources in Family, Friends
and Professionals .......................... 9
5.8 Written Documentation ................ 9
5.9 Advance Directive for Healthcare
and Designation of Healthcare
Proxy ............................................. 9
6. VISITING WITH THE PROTECTED
PERSON ................................. 10
7. ACTIVITIES AND SOCIALIZATION 11
8. RESOURCES FOR GUARDIANS AND
PROTECTED PERSONS ............ 11
9. GUARDIAN REPORTING ............. 12
10. GUARDIANSHIP MONITORING
PROGRAM (GMP) ................... 13
11. PAYMENT FOR SERVICE AS
GUARDIAN OF THE PERSON ..... 14
12. ACTION REQUIRED UPON
PROTECTED PERSON’S DEATH 14
FREQUENTLY ASKED QUESTIONS
(FAQ) ................................... 15
GLOSSARY OF TERMS ................... 17
1
1. INTRODUCTION
Some legal and non-legal language in the realm of guardianships may be new to
you. For your reference, a Glossary of Terms is included in this guide. The
terms defined in this glossary are in bold font, italicized and marked with a
dagger symbol (†) when they first occur in the text.
After viewing the contents of this guide you will be able to:
• Fully consider the major responsibilities of
being a guardian of the person†
• Know the difference between substituted
judgment† and best interest†
• Identify the difficulties involved in making
decisions for the incapacitated person†
• Understand guardian reporting
requirements
Also, as part of the qualification† process, you must file an acceptance that includes
an acknowledgment that you have received these materials, understand the
contents, and knowingly agree to take on the duties of guardianship.
1.1 Guiding Principles
In exercising the authority conferred upon you as guardian, and maximizing the
quality of life of the protected person†, you should consider the guiding principles
noted below.
1) Ascertain and consider those characteristics of the protected person which
define his or her uniqueness and individuality, including but not limited
to likes, dislikes, hopes, aspirations and fears;
2) encourage the incapacitated person to express preferences and participate
in decision-making;
3) give appropriate deference to the expressed wishes of the protected person;
4) protect the incapacitated person from injury, exploitation, undue influence
and abuse;
5) promote the protected person’s right to privacy, dignity, respect and self-determination;
and
6) make reasonable efforts to maximize opportunities and individual skills to
enhance self-direction.
† See Glossary of Terms
IT IS EXTREMELY
IMPORTANT THAT
PROSPECTIVE GUARDIANS
BECOME FAMILIAR WITH
THE DUTIES OF
GUARDIANSHIP BEFORE
ACCEPTING APPOINTMENT.
2
1.2 Responsibilities of a Guardian of the Person
You want to assist the protected person in navigating the world around them,
ensuring that they handle the tasks they are capable of handling on their own so
that they can continue to exercise independence as much as is safely possible.
For example, if the protected person is capable of maintaining their home without
the assistance of a housekeeper or in-home care provider, allow them to do that.
Try to allow them as much input into your decisions as possible.
1.3 Letters of Guardianship
Entry of the Judgment† by the Superior Court
judge† establishes the guardianship. Until the
guardian qualifies before the County
Surrogate†, however, he or she cannot act as
guardian. For example, a guardian who has not
yet qualified cannot make medical decisions for
the protected person.
To qualify, the guardian must sign certain documents reflecting acceptance of the
guardianship. Modest fees must be paid to the Surrogate for the issuance of
Letters of Guardianship†. You should keep these
original letters in a secure location, such as a safe
or safety deposit box, and should not turn them
over to any other person or facility. Qualification
may occur immediately following the
guardianship hearing, and must happen as soon
thereafter as possible.
1.4 Short Certificates
When you qualify, or at any time during the guardianship, you may apply to the
Surrogate for short certificates†. Short certificates contain the basic information
set forth in the Letters of Guardianship, stating that by Judgment of a particular
date, you were appointed as guardian of the person of a named incapacitated
person. A short certificate will also state that as of the date it was issued, the
guardianship remains in effect. As guardian of the person, you may obtain
additional up-to-date short certificates to provide to doctors, care facilities, and
other institutions as proof of your continuing authority.
† See Glossary of Terms
UNTIL THE GUARDIAN
QUALIFIES BEFORE THE
COUNTY SURROGATE,
HE OR SHE CANNOT
ACT AS GUARDIAN.
AS THE GUARDIAN OF A
DISABLED OR ELDERLY
ADULT, IT IS YOUR JOB TO
ENSURE THAT THE
INCAPACITATED PERSON
MAINTAINS AS MUCH
INDEPENDENCE AS POSSIBLE.
3
2. SUBSTITUTED JUDGMENT/BEST INTEREST
Your role as the guardian is to listen to the incapacitated person and ensure that
their preferences are being met as long as it does not cause harm. You are in a
position to make decisions for the protected person in one of two ways:
1. using substituted judgment; or
2. based on the best interest standard.
2.1 Substituted Judgment
When making decisions using substituted judgment, you are doing exactly as it
sounds: making the decision that the protected person would make if they had
the capacity to do so. To the extent the protected person can understand the issue
at hand, you have an obligation to discuss the decision you are going to make
with the protected person and listen to their preferences in that situation.
For example, if the doctor is recommending that
the protected person have surgery to put in a
pacemaker, you should discuss this with the
protected person. Try to put it in terms that they
have the ability to understand. Discuss the
benefits and the consequences of the decision you
are about to make. Listen to their preferences and
reason for making the decision.
When using substituted judgment it is also helpful to talk to other family
members or friends about conversations they have had with the protected person.
• Has the protected person ever talked about
their preference for medical treatment?
• Do they want all measures taken to prolong
their life or do they want only pain
management?
Your job is to determine what their preferences were when they were still capable
of making those decisions.
YOUR ROLE IS TO
ENSURE THAT THEIR
PREFERENCES ARE
BEING MET AS LONG
AS IT DOES NOT CAUSE
HARM.
SUBSTITUTED JUDGMENT
IS APPLIED WHEN YOU
MAKE THE DECISION THAT
THE PROTECTED PERSON
WOULD MAKE IF THEY HAD
THE CAPACITY TO DO SO.
4
2.2 Best Interest Standard
Making decisions using substituted judgment may be easier for a guardian of the
person dealing with someone who becomes incapacitated later in life as opposed
to an adult who has been disabled since birth.
When dealing with an adult who becomes
incapacitated later in life, they likely had
capacity and had the ability to understand
cause and effect relationships. As such, they
had likely discussed their preferences before
becoming incapacitated and you may have a
better understanding of what they would want.
With an individual who has been disabled since birth, this may be more difficult.
In those situations (or in situations where the incapacitated person’s preferences
may cause serious harm or injury), you would be making your decision based on
what you believe to be in the protected person’s best interest.
2.3 Tough Decisions
It is never easy to make a decision for another adult that goes against their
wishes, but you must keep in mind that your friend or family member does not
have the ability to truly understand the
consequences of their decision. Ultimately, the
decision is yours. If you are making a decision
that is in contrast to the stated or demonstrated
preferences of the incapacitated person, you
should be prepared to defend that decision.
YOU WOULD BE MAKING
YOUR DECISION BASED
ON WHAT YOU BELIEVE
TO BE IN THE PROTECTED
PERSON’S BEST INTEREST.
THE COURT APPOINTED YOU
AS THE GUARDIAN OF THE
PERSON—TO MAKE THE
TOUGH DECISIONS.
5
3. INCAPACITATED PERSON’S RIGHTS
The rights that the protected person maintains, if any, will be addressed in the
Judgment. The Judgment may state that the protected person is unable to manage
himself or his affairs and requires a general guardian of the person.
With a limited guardianship†, however, the Judgment
may provide that the incapacitated person is only
unable to govern herself as to particular areas, like
medical decisions requiring informed consent and
legal affairs, and in all other areas retains capacity.
Or, a Judgment appointing a limited guardian may be
structured differently, providing that the
incapacitated person is incapacitated in all areas
except for those that are listed, for example decisions
as to socialization and recreation.
4. COORDINATING SERVICES
As the guardian of the person, it is your responsibility to ensure that the protected
person is receiving appropriate medical care, proper education and that their
overall health and welfare is protected. You will be responsible for coordinating
medical appointments and being aware of the medical needs of the incapacitated
person.
• Do they need hearing aids? What about
dentures? Are they diabetic?
• Maybe the incapacitated individual is a
young adult with disabilities.
o Can they still attend school?
o What about attending life skills
training classes on topics such as
cooking or balancing a checkbook?
If the protected person has the ability to
benefit from this type of training, then it is
your responsibility to coordinate these
services for him or her.
† See Glossary of Terms
TO UNDERSTAND
WHICH RIGHTS ARE
RETAINED BY THE
PROTECTED PERSON,
YOU SHOULD ALWAYS
CONSULT THE
JUDGMENT.
IT IS YOUR
RESPONSIBILITY TO
ENSURE THAT THE
PROTECTED PERSON IS
RECEIVING
APPROPRIATE MEDICAL
CARE AND EDUCATION,
AND THAT THEIR
OVERALL HEALTH AND
WELFARE IS PROTECTED.
6
5.MEDICAL CONSIDERATIONS
The National Guardianship Association (NGA) provides an online outline that may
be very useful when trying to make medical decisions on behalf of the protected
person HTTP://WWW.GUARDIANSHIP.ORG/DOCUMENTS/STANDARDS_OF_PRACTICE.PDF .
NGA Standard 6 – Informed Consent†
I. Decisions the guardian makes on behalf of the person under guardianship
shall be based on the principle of Informed Consent.
II. Informed Consent is an individual’s agreement to a particular course of action
based on a full disclosure of facts needed to make the decision intelligently.
III. Informed Consent is based on adequate information on the issue, voluntary
action, and lack of coercion.
IV. The guardian stands in the place of the person and is entitled to the same
information and freedom of choice as the person would have received if he or
she were not under guardianship.
V. In evaluating each requested decision, the guardian shall do the following:
A. Have a clear understanding of the issue for which informed consent is
being sought,
B. Have a clear understanding of the options, expected outcomes, risks and
benefits of each alternative,
C. Determine the conditions that necessitate treatment or action,
D. Encourage and support the person in understanding the facts and
directing a decision,
E. Maximize the participation of the person in making the decision,
F. Determine whether the person has previously stated preferences in
regard to a decision of this nature,
G. Determine why this decision needs to be made now rather than later,
H. Determine what will happen if a decision is made to take no action,
I. Determine what the least restrictive alternative is for the situation,
J. Obtain a second medical or professional opinion, if necessary,
K. Obtain information or input from family and other professionals, and
L. Obtain written documentation of all reports relevant to each decision.
† See Glossary of Terms
7
5.1 Informed Consent
As a guardian, you should have a clear understanding of the issue for which
informed consent is being sought. If needed, ask as many questions as it takes
to feel comfortable that you understand what is being proposed for the
incapacitated person.
5.2 Determine Conditions
Determine the conditions that make
treatment or action necessary. In other
words, what is the underlying problem that is
causing the doctor to suggest this form of
treatment?
For example, what if the incapacitated person has started exhibiting behavioral
outbursts and aggressiveness towards caregivers and the doctor wants to
prescribe an anti-psychotic medication that has potential for significant side
effects? You might first want to consider if these outbursts are because the
incapacitated person is in pain, and if so, whether over the counter pain
medication would be the better solution.
5.3 Protected Person’s Preference
Advise the protected person of the decision that is
required and determine, to the extent possible, their
current preferences. Talk with family and friends of
the protected person to determine whether he or she
has previously stated preferences in regard to a
decision of this nature. You can reference the section
2. Substituted Judgment/Best Interest in this guide
for more guidance in approaching the decision making
process.
5.4. Alternatives and Timing of Decision-Making
Determine the expected outcome of each alternative. Using the example of the
prescription of anti-psychotic medication versus simple medication, is it better to
consent to the prescription or to request over the counter pain medication first to
rule out the need for pain management? In addition to the expected outcomes,
you should also consider the benefits and risks of each alternative.
ASK AS MANY QUESTIONS
AS IT TAKES TO FEEL
COMFORTABLE THAT YOU
UNDERSTAND WHAT IS
BEING PROPOSED FOR THE
INCAPACITATED PERSON.
DETERMINE WHETHER
THE INCAPACITATED
PERSON HAS
PREVIOUSLY STATED
PREFERENCES IN
REGARD TO A DECISION
OF THIS NATURE.
8
Sometimes it can be difficult to determine when, or if, it is best to take action.
There are times when a decision to wait to take action or to take no action at all
can be appropriate. Weigh all options carefully before making a decision.
It may be that the protected person is elderly and was presented with an option
to have a pacemaker in the past. At the time, the protected person had capacity
and determined that she did not believe the risks of the procedure were worth
the benefit. In this situation, you would want to consider her reasoning at the
time she made this decision.
5.5 Least Restrictive Decision
When faced with a decision, you should determine what the least restrictive
alternative is for the situation.
• In the prior example, over the counter
pain medication would be less restrictive
than prescription anti-psychotic
medication. Thus, this less restrictive
option should be considered before
consenting to the more restrictive
alternative.
• Living at home with caregivers as
opposed to placement in an assisted living
facility or nursing home is another
example of a less restrictive alternative.
Less restrictive options should only be selected when they are sufficient to
safeguard the protected person, and more restrictive alternatives must be
considered when less restrictive choices prove ineffective.
• Returning to the prior example, if over the counter medication is attempted
but has no impact on the protected person’s behaviors, it may then be
appropriate to consider the more restrictive option of prescription
medication.
• If a protected person resides at home with caregivers and his condition
deteriorates such that this arrangement becomes unsafe, then you should
consider a more restrictive option like an assisted living facility.
MAKE SURE THAT THE
INCAPACITATED PERSON
RECEIVES THE LEAST
RESTRICTIVE FORM OF
INTERVENTION SO THAT
HE OR SHE MAINTAINS AS
MUCH INDEPENDENCE AS
POSSIBLE.
9
5.6 Additional Opinions
Get additional opinions, if necessary. The same rights you have over your own
person, you have over the protected person. If you feel you need a second or third
medical opinion before making a decision for treatment, by all means, seek
additional opinions.
5.7 Seek Resources in Family, Friends and Professionals
It may be helpful to obtain information or input
from family, friends or professionals. Again, this
goes back to making a decision using best interest
versus substituted judgment. It is often beneficial
to seek out assistance within your community. For
example, all hospitals will have a bioethics team
available to consult with you about a particular
medical procedure.
5.8 Written Documentation
Get written documentation of all reports relevant to each decision. Keep in mind
that your decisions are open to scrutiny by others, such as other family members,
court-appointed counsel, or the courts. You want to make sure that you can
always support a decision you have made on behalf of the incapacitated person.
5.9 Advance Directive for Healthcare and Designation of Healthcare Proxy
Some individuals will have executed an
advance directive for healthcare† prior to
becoming incapacitated. The advance directive
typically appoints someone, who may or may
not be the person later appointed as guardian,
to serve as the proxy for healthcare decisions.
Often, but not always, the designation of the healthcare proxy† will be voided
upon entry of the Judgment. For example, if the person expressed a preference
to have certain measures taken to prolong life, prior to becoming incapacitated,
then the guardian would consider that preference in making medical and end of-
life care decisions. For more information on this topic, see the Frequently
Asked Questions (FAQs) in this guide.
† See Glossary of Terms
BE FAMILIAR WITH
THE RESOURCES
AVAILABLE WITHIN
YOUR COMMUNITY
AND USE THEM.
THE JUDGMENT MAY VOID
THE PROXY DESIGNATION BUT
INSTRUCT THE GUARDIAN TO
ADHERE TO THE PREFERENCES
EXPRESSED IN THE
HEALTHCARE DIRECTIVE.
10
6. VISITING WITH THE PROTECTED PERSON
Under New Jersey law—unless otherwise
ordered—a guardian of the person shall personally
visit the incapacitated person not less than once
every three months. The guardian must maintain
sufficient contact with the protected person to
know his capacities, limitations, needs,
opportunities and physical and mental health.
If there is a reason why visiting with the protected person regularly will not be
suitable, then you may want to request that the Judgment set forth your visitation
obligation. See the examples noted below.
• Some individuals with mental illness may be upset by disruption to their
standard routine, and the treating psychologist may recommend staying in
touch by phone instead of visiting in person.
• Some guardians reside at a substantial distance from the protected person,
and they may visit twice annually for extended periods, rather than once
every three months.
The law makes clear the obligation of a guardian to maintain consistent
communication with the protected person and to effectively oversee his or her wellbeing.
Depending on the circumstances of the case, a protected person may need
more frequent, or less frequent, in-person visits, but this should be addressed in
the Judgment whenever possible.
MAINTAIN SUFFICIENT
CONTACT WITH THE
PROTECTED PERSON TO
KNOW HIS OR HER
HEALTH STATUS,
CAPACITIES AND NEEDS.
11
7. ACTIVITIES AND SOCIALIZATION
As guardian, you have a duty to make sure that
appropriate activities and socialization
opportunities are provided for the incapacitated
person to the extent that the protected person has
the ability to enjoy them. You should determine
what the incapacitated person likes to do.
• If he is an avid reader, make sure that reading material is available.
• If he previously read books and magazines but his vision has deteriorated
and he can no longer read printed materials, then obtain recorded books
instead.
• If she likes to listen to music, arrange for access to music (via radio, CDs,
MP3s) or an outing to a concert.
8. RESOURCES FOR GUARDIANS AND PROTECTED PERSONS
In New Jersey, the Aging and Disability Resource Connection, a division of the
State of New Jersey Department of Human Services, assists guardians and other
caregivers in finding benefits and services. The online search engine enables you
to look for services and providers based on service categories and/or areas served.
There are also nonprofit
Resources‡, that provide lists of
national, state, and county
agencies that provide services for
and/or their families and
caregivers. You will find links for
information about many conditions such as Epilepsy, Tourette syndrome,
Alzheimer’s disease as well as other organizations such as VSA New Jersey (State
organization focused on Arts and Disability) and the Special Olympics New
Jersey.
‡ Disability Resources is not affiliated with the Judiciary or the Department of Human Services. It is mentioned in
this guide solely as an example and is not recommended or endorsed by the State.
YOU HAVE A DUTY TO
MAKE SURE THAT
APPROPRIATE ACTIVITIES
AND SOCIALIZATION
OPPORTUNITIES ARE
PROVIDED.
AGING AND DISABILITY RESOURCE CONNECTION
• HTTP://WWW.ADRCNJ.ORG/ organizations, like Disability
DISABILITY RESOURCES
• HTTP://WWW.DISABILITYRESOURCE.ORG/ individuals with disabilities
12
9. GUARDIAN REPORTING
Generally, an individual appointed as a guardian of the person of an incapacitated
person must periodically report to the court regarding the guardianship. Most
guardians of the person are required to report every twelve (12) months; however, the
Superior Court judge who established the guardianship may order a different
reporting frequency.
The Report of Well-Being†, like any guardianship
report, must be filed along with a Report of
Guardian Cover Page†. If there are multiple coguardians
of the person, all co-guardians may sign a
single report, or may file separate reports if
preferred. To assist you in determining how much
information must be presented, you should review
the separate Guide to Guardianship Reporting
Forms.
Detailed instructions are provided prior to the online form, which can be completed
on a computer and then printed (or completed by hand). Both report forms are posted
online on the Judiciary website, as listed below.
Report of Guardian Cover Page
HTTP://WWW.NJCOURTS.GOV/FORMS/11797_GRDNSHP_RPT_GRDN_
COVER_PG.PDF
Report of Well-Being Form
HTTP://WWW.NJCOURTS.GOV/FORMS/11798_GRDNSHP_RPT_WELL_B
EING.PDF
Questions about filing guardianship reporting forms should be directed to the
appropriate Surrogate’s Court; see the link below for contact information.
Directory of New Jersey County Surrogates
HTTP://WWW.NJCOURTS.GOV/DIRECTORY/SURROGATEROSTER.PDF
For further information on periodic reporting requirements, see the Frequently
Asked Questions (FAQ) section in this guide.
† See Glossary of Terms
YOU MUST CONSULT
THE JUDGMENT TO
DETERMINE WHEN YOU
ARE REQUIRED TO
SUBMIT A REPORT OF
WELL-BEING TO THE
COURT.
13
10. GUARDIANSHIP MONITORING PROGRAM (GMP)
The New Jersey Judiciary Guardianship Monitoring Program (GMP)† is a
statewide court program established in 2013 to monitor and support guardians
in their handling of the affairs of incapacitated individuals. The program is
committed to helping ensure that these vulnerable members of society are
treated with dignity and respect, while also assisting guardians with their
challenging role.
Judiciary staff as well as appointed and
trained court volunteers review
guardianship case information,
including inventories and certain
periodic reports submitted by
guardians. The purpose of this review is
to ensure that each guardian is handling
the affairs of the incapacitated
individual properly. The review is also intended to detect whether the protected
person is subjected to abuse, neglect, financial exploitation or other
problems. Cases in which such concerns are revealed are then referred to
appropriate court leaders for additional review, as well as follow up as needed.
This follow up may include a referral to a Superior Court, Chancery Division,
Probate Part Judge when necessary.
It is important for guardians to know that certain periodic reports submitted to
the court will be reviewed through the GMP. In accordance with their
appointment, a guardian must cooperate with Probate Part judges, court staff
and volunteers who may contact you for additional information or to provide
direction regarding your guardianship matter.
For more information about the GMP, visit: NJCOURTS.GOV/GUARDIANSHIP.
† See Glossary of Terms
THE PURPOSE OF THE GMP IS
TO SAFEGUARD INCAPACITATED
INDIVIDUALS FROM POTENTIAL
ABUSE, NEGLECT, AND
EXPLOITATION BY COURTAPPOINTED
GUARDIANS.
14
11. PAYMENT FOR SERVICE AS GUARDIAN OF THE PERSON
New Jersey law does not provide for compensation to a guardian of the person
only.
• If you are also appointed as guardian of the estate, then statutory
commissions † are available.
• If you serve as guardian of the person only for an individual who does
have assets and/or income (such as someone for whom there is a
separate guardian of the estate), you may wish to apply to court for
compensation for services that go beyond the scope of typical
guardianship duties.
Approval for compensation should be addressed
in the initial Judgment or via subsequent
application to the court. Unless the court
approves payment to you as guardian of the
person, you are not entitled to take such payment
from the guardianship estate.
12. ACTION REQUIRED UPON PROTECTED PERSON’S DEATH
When the protected person dies, you must promptly notify the Surrogate’s Court†
and forward a copy of the death certificate upon receipt. You should consult the
Judgment to determine if you are required to notify anyone else within a specified
period of time.
† See Glossary of Terms
NEW JERSEY LAW
DOES NOT PROVIDE
FOR COMPENSATION
TO A GUARDIAN OF
THE PERSON ONLY.
15
FREQUENTLY ASKED QUESTIONS (FAQ)
Q: What is the difference between substituted judgment and best interest?
A: When using substituted judgment, a guardian makes a decision that the
protected person would make if he or she had capacity, typically based on the
preferences previously expressed by the individual. In contrast, a decision
made based upon best interest requires the guardian to determine what he or
she believes would be best for the incapacitated person, either without
knowledge of the protected person’s wishes or because doing what he or she
wants would be unreasonably dangerous or impracticable.
Examples: (1) Consider the question of whether an elderly incapacitated
person should continue to reside in her own home after falling several times,
resulting in repeated injuries. If the protected person clearly expresses a
desire to live at home, then a guardian using substituted judgment would
honor this wish by bringing in home health aides or other assistance. (2) In
applying the best interest standard, the guardian could decide to relocate the
protected person to an independent living facility with on-site medical staff
because remaining at home is unduly dangerous.
As illustrated by the above examples, a guardian should first attempt to apply
substituted judgment, in order to achieve the known and reasonable
preferences of the protected person. If the incapacitated person’s wishes are
unknown, or if fulfilling them would be dangerous or impractical, then the
guardian should shift from substituted judgment to a best interest approach.
Q: When should the Report of Well-Being be filed?
A: You must consult the Judgment to determine when you are required to file a
report as to the well-being of the incapacitated person. If ordered to report
annually, the due date will be based on the anniversary of your Judgment date.
Most guardians of the person are required to report every twelve (12) months.
However, the appointing judge may order a different reporting period. For
example, the Judgment might only require a report of well-being every three
(3) years. The Judgment will also indicate who should be served with a copy
of the report.
16
Q: Does anything need to be attached to the Report of Well-Being?
A: The report of well-being requires an attached statement of the incapacitated
person’s condition and functional level. As guardian, you must obtain a written
statement from a professional (physician, psychologist, clinician, etc.) who has
evaluated the protected person within the reporting period. It is helpful to
acquire a professional’s statement well in advance of the due date for the wellbeing
report.
Q: If a guardian is appointed for someone who previously executed an advance
directive for healthcare, who makes medical decisions?
A: It is extremely important that you, as guardian, know whether you or another
person has authority to make healthcare decisions. If the Judgment voids, or
cancels, the designation of healthcare proxy, then you should be sure to provide
short certificates (and possibly a copy of the Judgment) to any doctor or
hospital that may have a copy of the now voided advance directive on file.
Failure to do this may result in the hospital contacting a prior healthcare proxy
rather than you as guardian.
If you know that another person has been appointed as healthcare proxy, then
you should request that the Judgment specify whether the designation of
healthcare proxy is voided. If the designation of healthcare proxy is not voided,
then the Judgment should provide direction as to how you as guardian are to
work with the healthcare proxy. For example, the Judgment may specify that
although you are appointed as guardian of the person, you do not have
authority over areas or decisions addressed by the advance directive.
It is extremely important to seek clarification from the court, as far in advance
as possible, to avoid a situation in which it is unclear to a doctor or hospital
who is authorized to make a medical decision for the incapacitated person.
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GLOSSARY OF TERMS
Legal and non-legal language in the realm of guardianships is always changing. For
reference, a glossary of terms is included in this guide. The terms defined in this
glossary are marked with a dagger symbol (†) when they first occur in the text.
Advance
Directive for
Healthcare
A document setting forth an individual’s wishes, specifically
regarding medical and end-of-life decisions.
An advance directive typically appoints someone, known as a
healthcare proxy, to make decisions in the event that the person
becomes unable to do so.
Also known as a healthcare power of attorney or living will.
Best Interest
Standard
Making a decision based on what you believe to be in the best
interest of another person; for example, a guardian making a
decision based upon what is believed to be in the best interest of
an incapacitated person.
Commissions Compensation, set by statute, to which an individual, such as a
guardian of the estate of an incapacitated person, is entitled.
A guardian of the person is not entitled to commissions.
County
Surrogate
An elected Constitutional Officer who serves as judge of the
Surrogate’s Court for uncontested probate and estate matters.
A Surrogate also serves as Deputy Clerk to the Superior Court for
the Probate Part, as well as for adoptions in the Family Part.
General
Guardianship
A “complete in every respect” type of guardianship in which the
guardian is able to exercise all rights and powers of the
incapacitated person in terms of the area of responsibility he or
she is granted.
Also known as full or plenary guardianship.
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Guardian An individual appointed by the court with authority over the
person and/or the estate of a person who has been legally declared
incapacitated.
A guardian may have general or limited authority.
Guardian of
the Estate
An individual appointed by the court to handle the financial
affairs of another person who has been legally declared
incapacitated.
Unlike a guardian of the person, a guardian of the estate is not
responsible for decisions regarding the personal well-being of the
protected person. Rather, the guardian of the estate handles
assets, income, expenses and liabilities.
Guardian of
the Person
An individual appointed by the court to handle the personal
affairs of another person who has been legally declared
incapacitated.
Unlike a guardian of the estate, a guardian of the person does not
manage the financial affairs of the incapacitated person, except
that a guardian of the person may serve as representative payee
for Social Security benefits.
Guardianship
Monitoring
Program
(GMP)
The New Jersey Judiciary Guardianship Monitoring Program is a
statewide court program launched in January 2013 to monitor
and support guardians in their handling of the affairs of
incapacitated individuals. The program was implemented in all
21 counties as of July 2014.
Healthcare
Proxy
An individual designated by an advance directive to make medical
and end-of-life decisions for the principal (the person who
executed the advance directive) if the principal becomes unable to
do so.
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Incapacity Inability to govern oneself and/or to manage one’s affairs.
Incapacity may be general (as to all areas) or limited (as to specific
areas only).
Incapacitated
Person
An individual legally declared by the court as unable to govern
himself or herself and/or unable to manage his or her affairs.
Also known as a protected person. Formerly referred to as an
incompetent or a ward.
Informed
Consent
An individual’s agreement to a particular course of action based
on a full disclosure of facts needed to make the decision
intelligently.
Interested
Parties
A person or agency that has an involvement with the
incapacitated person who is the subject of the guardianship.
Interested parties (or parties in interest) are typically the same
individuals entitled to notice of the initial application for
guardianship – i.e., the incapacitated person’s spouse, parent,
adult child, etc.
Judgment The official decision of a court in a case.
For purposes of this guide, Judgment refers to the Judgment of
Incapacity and Guardian Appointment, also known as the
Judgment of Incapacity and Order Appointing Guardian.
Least
Restrictive
Alternative
The most minimally restrictive form of intervention appropriate
to address a situation, enabling the incapacitated person to
maintain as much independence as possible without putting him
or her in danger.
Letters of
Guardianship
Documents issued by the County Surrogate upon an individual’s
qualification as guardian, after the entry of a Judgment by the
Superior Court. Proof of a guardian’s authority.
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Limited
Guardianship
A less intrusive, more individualized, type of guardianship in
which a guardian is appointed with authority as to some – but not
all – areas.
A limited guardianship is established based upon a court’s finding
that the person alleged to be incapacitated lacks the capacity to
do some, but not all, of the tasks necessary to care for himself or
herself.
Protected
Person
Another term for an incapacitated person, that is, an individual
legally declared by the court as unable to govern himself or herself
and/or unable to manage his or her affairs.
Formerly referred to as an incompetent or a ward.
Qualification A process conducted before the County Surrogate, or Surrogate’s
staff, following entry of a Judgment.
As part of qualification, the person appointed as guardian affirms
his or her willingness to fulfill the duties of a guardian.
Report of
Guardian
Cover Page
A general information form required to be filed along with any
other guardianship reporting form(s). This form may be signed by
all co-guardians of the person, or by all co-guardians of the estate.
The Report of Guardian Cover Page is available at:
HTTP://WWW.NJCOURTS.GOV/FORMS/11797_GRDNSHP_RPT_GRD
N_COVER_PG.PDF.
Report of Well-
Being
A form developed and approved for use by a guardian of the person
required to report as to the well-being of the incapacitated person.
The Report of Well-Being is available at:
HTTP://WWW.NJCOURTS.GOV/FORMS/11798_GRDNSHP_RPT_WELL
_BEING.PDF.
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Service Delivery of papers in a legally appropriate way.
For example, notice of an application for appointment of a
guardian is served upon the alleged incapacitated person by
personal service, meaning that copies of the papers are personally
delivered. For more information, see New Jersey Rules of Court
(Rule 1:5) at:
HTTP://WWW.NJCOURTS.GOV/RULES/INDEX.HTML
Short
Certificates
Short forms of the Letters of Guardianship, stating that by
Judgment of a particular date, the guardian was appointed with
authority of the person and/or estate of the named incapacitated
person.
A short certificate will state that as of the date it was issued, the
guardianship remains in effect. Additional short certificates may
be purchased by a guardian, from the Surrogate, for $5.00 each as
long as the guardianship remains in effect. Unlike the original
Letters of Guardianship, short certificates should be provided to
doctors, care facilities, and other institutions that require proof of
a guardian’s authority.
Substituted
Judgment
Standard
Making a decision based upon what you believe that the protected
person would do if they had the capacity to make the decision.
Superior Court
Judge
For purposes of guardianships, the judge of the Superior Court,
Probate Part, who decides if the alleged incapacitated person is in
fact incapacitated and in need of a guardian.
The Superior Court judge makes the substantive decisions about
the guardianship, including the determination of capacity and the
choice of guardian. The Superior Court judge conducts any
hearing(s) and signs the Judgment.
Surrogate’s
Court
A county office headed by the County Surrogate that may be in
the same location as the Superior Court or may be in a different
location.
Probate Part actions are filed with the Surrogate's office,
including actions to appoint a guardian. It is also where the
guardian goes to qualify after entry of the Judgment.
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Source http://www.judiciary.state.nj.us/guardianship/Guardianship_Person_web.pdf
