Guardianships for Minors and the Mentally Incapacitated

There are many different types of guardianships, but, as a general matter, the common characteristic is that the decision making power of a person (the “Ward”) is given over to another (the “Guardian”).  A guardian might be appointed for a minor or someone who is believed to be incapacitated.

NOTE:  There is a special type of guardianship established in connection with mortgage foreclosures, in which I have had nearly 300 court appointments throughout New Jersey.   I discuss these separately.

Here is a brief description of the various types of guardianships in which I have been involved:

  • Guardianship for a Minor:  A minor in New Jersey is someone under the age of 18.  A minor needs a guardian because someone who is “under legal age” typically cannot bind him/herself to contracts, own property, and generally is unable to engage in typical day-to-day transactions.  A minor needs someone who can engage in these transactions and  make legally binding decisions on the minor’s behalf.  A parent is the natural guardian of minor children and may make a guardian appointment in a Will; however, if no appointment is made in this manner, or if for reasons other than death neither parent is available, someone will have to serve as the minor’s guardian. A contest in such a case will arise, if at all, if someone believes that the applicant for guardianship is unfit.
  • Guardianship for an Incapacitated Person:  Obviously, a child’s status as a minor is readily established (for example, by birth certificate), whether a person is “incapacitated” such that a Guardian should be appointed requires proof.  This proof is often complicated and sometimes disputed.

The term “Incapacitated” is the statutory term for someone who may more commonly be known as a mentally incompetent person.  Prior to a final judgment by a Court that a person is Incapacitated (i.e., unfit to govern him or herself) the person is called an “Allegedly Incapacitated Person” (AIP) and after adjudication, simply an “Incapacitated Person” or an “Adjudicated Person.”  The act of giving power and authority to a guardian is the deprivation of a person’s most fundamental civil rights to control his or her daily life and decision making and the law affords the AIP many safeguards to prevent injustice.  These safeguards include the requirements that physicians examine the AIP and give an opinion about the nature and degree of mental impairment; also, the Court will appoint an attorney to represent the AIP and either to defend against the guardianship itself, or to advocate for a least-restrictive guardianship (one that leaves some decision making in the hands of the AIP).

Incapacity may arise from age, mental disability, Alzheimer’s or dementia, accident, chronic condition, disease or stroke. This incapacity may be complete (requiring the appointment of a “General (or “Plenary”) Guardian” of the person and the person’s property) or may be partial (requiring only a “Limited Guardian”). A guardian’s duties are spelled out both in the Order of the Court and in the statutes.

In a contested or questionable case, the Court may appoint a person who acts as a neutral fact finder to determine what is in the best interests of the AIP.  This person is called a “Guardian ad Litem” – somewhat of a confusing misnomer because the GAL is not anyone’s guardian, but is simply an investigator who owes a duty only to the Court, and typically files a Report and makes recommendations to the Judge as to what the GAL thinks is in the AIP’s best interests.   These recommendations might be to limit the guardianship to medical and financial decisions, but to allow the AIP to decide about personal care, clothing and schooling.  Or it might be that the Court appoint a “Plenary Guardian” – a complete delegation of decision making to the Guardian.  A guardian could be appointed to control a person’s finances or solely to make medical decisions.

  • Stand-by Guardian: A parent might be entering the hospital and need to appoint a person to take care of a minor child during the period of hospitalization. Or a parent might be away on business, or on vacation.  The procedure for such a temporary guardianship does not involve the Court initially, but requires certain particular documents to be put in place.
  • Conservator: A person may feel that he or she is unable to manage his or her assets or business affairs, but might still meet the tests of legal capacity. Such a person might want to appoint a “Conservator” who will handle business affairs. This is a voluntary proceeding that requires Court involvement. In many cases, a Conservatorship can be avoided by use of a properly worded Durable Power of Attorney.
  • Court Appointed Guardian ad Litem: As explained above (concerning Guardians for the mentally incapacitated), a Court is sometimes called upon to appoint an attorney or to appoint a Guardian ad Litem (a “GAL”).  These appointments can arise in many different contexts, the most common being when a minor is a beneficiary of an estate or a trust that is in litigation, or a minor or incapacitated person is a defendant in a foreclosure action.  The use of the term “Guardian” is somewhat misleading since the GAL is not given authority over the person (the “Ward”) but is charged by the Court with finding out what is in the ward’s best interests and making recommendations to the Judge.

There was long standing uncertainty about the difference in the duties of a Court appointed attorney for an AIP and a court appointed Guardian ad Litem.  The New Jersey Supreme Court explained the difference in Matter of M.R. 135 N.J. 155 (1994), a case in which a guardian was sought for mentally disabled person.  The Court stated:

“A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed.

A court-appointed guardian ad litem’s services are to the court on behalf of the child. The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person.” (at page 173)


Admitted to Practice Pennsylvania (1977) and New Jersey (1982)