At 18 years old, all people in New Jersey, including those with disabilities, are considered adults under the law. Regardless of the individual’s type of disability or if he or she lives at home, once an individual reaches the age of 18, parents can no longer make decisions legally on their behalf. Some families may want to consider establishing a legal guardian for a disabled individual, once they reach the age of majority, who will represent his or her best interests.
Guardians may make decisions in some areas of the individual’s life, such as residential, educational, medical, legal, vocational, and financial matters. There are two types of guardianships: general and limited. General guardianship, also known as plenary guardianship, is appropriate for individuals who cannot make or express any decisions. Limited guardianship is appropriate for individuals who are able to make and express some, but not all, decisions. A limited guardianship may be appropriate for high-functioning disabled individuals or those with mild cognitive impairment.
There are two ways to obtain a guardianship for a disabled individual over the age of 18 who is receiving services from the Division of Developmental Disabilities (DDD). First, a family member or interested party can file a guardianship action with two physicians or one physician and one psychologist who can attest to the individual’s incapacity. Another way is to file a Title 30 (DDD) guardianship.
To file for a DDD guardianship, only one physician or psychologist will need to examine the individual and write an evaluation that will be submitted under oath. A second report will typically be submitted by the regional DDD administrator. Based on the knowledge of the agency and the individual’s level of mental capacity, the director can certify whether or not the individual should be appointed a guardian. After the physician or psychologist’s affidavit and the director’s certification are filed with the court, the court will appoint a private attorney to represent the DDD recipient. Title 30 judgments instill the same power as a regular guardianship. However, guardians must follow certain reporting and record-keeping requirements, which must be fulfilled with the court annually.
In addition to filing for guardianship, parents of a disabled individual may be able to appoint a successor guardian in their Last Will and Testament. It is important that, when parents consider appointing a primary successor, they also designate a second and third successor, in case the primary successor is unable to perform his or her duties. If there is no one to serve as a successor guardian, the state may be able to serve as guardian, as a last resort. A special needs trust can be established to serve the needs of the disabled individual.
As an alternative to a guardianship, some disabled individuals have the option of establishing a power of attorney. A power of attorney can make decisions on behalf of an individual regarding their property and assets. A disabled individual must be able to comprehend, at least on a basic level, that they are appointing another person to make decisions on their behalf. He or she must also be able to consent to the power of attorney.
If you are the parent of a loved one with a disability and are considering the establishment of a guardianship or a power of attorney, it is important to consult an experienced attorney. The New Jersey guardianship attorneys at Hunziker Jones & Sweeney P.A. are experienced with assisting families and individuals with guardianship matters. For more information or to schedule a consultation, contact our New Jersey guardianship law office at (973) 256-0456.