Adult Guardianship Primer
Apr 7, 2026 | Written by: | Share
Every adult should have a Power of Attorney (a document appointing a principal to take care of the finances of another) and an Advanced Medical Directive (a document appointing a representative to make medical decisions for another). These documents ensure that, if there comes a time when a person cannot handle his/her own affairs, someone is designated to do so on his/her behalf. For those adults who become mentally incapacitated without these important estate planning documents, or for those individuals who turn 18 and have a mental incapacity, a guardianship action will need to be commenced in the Superior Court.
The law provides for General and Limited Guardianships, depending on the degree of mental capacity. Further, the guardianship is bifurcated into Guardianship of the Person and Guardianship of the Property. The same person can be guardian of both, or the duties can be shared by two people.
The purpose of a Court action is to adjudicate the person mentally incapacitated and appoint a guardian, or caregiver, of the person and/or the person’s property.
The Court action is commenced upon the filing of a Complaint and two (2) certifications from doctors confirming mental incapacity. The Court will appoint a Court Appointed Attorney (CAA) to represent the Alleged Incapacitated Person (AIP) and schedule a hearing. The CAA will interview all relevant parties (e.g., AIP, parents, spouse, siblings, doctors, and teachers) and file a report with the Court summarizing his/her findings and recommendations.
If the doctors certify that an AIP has some mental capacity for decision making, a Limited Guardianship is appropriate. Under a Limited Guardianship, the AIP retains some decision-making authority. Most commonly, the AIP retains the right to have say relating to housing, vocation and education.
However, if the doctors certify that the AIP lacks the mental capacity to make any decisions, a General Guardianship is appropriate, and the guardian makes all decisions.
To avoid the expense and time involved in a Court action, all adults should have a Power of Attorney and an Advanced Medical Directive. For children with mental infirmities, such as autism, a guardianship may be necessary when they turn 18 and become adults.
Eliot M. Goldstein, Esq., is a partner with Gebhardt & Kiefer, P.C. He concentrates his practices on wills, trusts, estate planning, estate administration, estate litigation, guardianships, real estate, business planning, and commercial law. Contact Mr. Goldstein at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.