NEW PROFESSIONAL GUARDIAN LEGISLATION

When a person cannot make decisions for themselves, they may need a guardian. A guardian is a court-appointed surrogate decision-maker. Once appointed, a person’s guardian is charged with the obligation and right to make all of the ward’s decisions, both financial and health-care related.

There are two fact patterns in which the need for a guardian arises. One involves a person who has failed to plan for their disability. Many people don’t want to sign financial powers of attorney and advanced health care directives. Either they don’t want to face the fact that someday they might be disabled or they believe that they will never be disabled or they mistakenly believe that if they are ever unable to make decisions for themselves, somebody (such as a spouse or child) will be able to make decisions for them.

The second fact pattern involves somebody who may have planned for their future disability, but they suffer from dementia and simply will not do what is in their best interest. Many of these people live in their own homes, alone, and refuse to leave their home in order to obtain the care they require.

There are many elderly individuals who, eventually, find themselves in one or the other scenario outlined above. But what if there is no willing family member or friend to serve as the elder’s guardian? Who will serve then?

New Jersey has a Public Guardian (the Office of the Public Guardian, which is located in Trenton). The Public Guardian will serve as a person’s guardian – if there is no family member or other interested party who is ready, willing, and able to serve.

As you might imagine, however, the Public Guardian does not have the resources (financial or personnel) to meet the needs of all of those individuals who require a guardian in New Jersey and who do not have a family member who is willing to serve.

In May of this year, New Jersey Senator Robert W. Singer introduced a bill to the New Jersey Legislature that would provide for the creation of a Professional Guardian designation. Under Senator Singer’s bill, a Professional Guardian would be either a member of the State Bar (i.e., a lawyer) or an individual who has been certified by the Administrative Office of the Courts to serve as a Professional Guardian.

Those seeking the Professional Guardian certification through the Administrative Offices of the Courts (i.e., non-lawyer Professional Guardians) would have to possess a bachelor’s degree and meet a minimum of two year’s work experience in work related to the care and management of elderly individuals. (An individual could also qualify as a Professional Guardian if they have an associate’s degree and five year’s of work experience.)

Non-lawyer Professional Guardians must submit proof of professional liability insurance and submit to credit and criminal background checks.

The bill directs those individuals who have been certified as a Professional Guardian to submit an annual report accounting to the Clerk of the Superior Court of the county in which the ward resides. The Guardian must also submit an annual statement as to the ward’s condition.

Finally, those Professional Guardians who seek to be appointed in more than three court-appointed guardianships must be certified as a Registered Professional Guardian by the National Guardianship Foundation within two years of the third appointment.

If passed, this bill would offer an important option to the courts for the appointment of a guardian. Those individuals who have no one who is willing to serve as their guardian would have a viable, additional option. The position of a Professional Guardian is much needed in our state and will be welcomed.