Hanlon Niemann, PC
3499 Route 9 North, Suite 1F
Freehold, NJ 07728
Elder Law, Estate Planning, Asset Protection and
Veterans Benefits Attorneys
Lifecare Planning by
Use of Guardianships
Fredrick P. Niemann, Esq.
Fredrick P. Niemann offers his clients nearly 30 years of
accomplished practice in the law. He is a member of the National
Academy of Elder Law Attorneys, the Guardianship and
Conservatorship Committee of NAELA, Monmouth County
Probate and Estate Committee and the Monmouth County
Chancery Practice Committee. He is a certified will case mediator
approved by the NJ Supreme Court. Mr. Niemann is one of the
select few attorneys in NJ, accredited by the Veteran’s
Administration to apply for Aid and Attendance benefits for
Veterans and their spouses. He has been listed by the prestigious
Martindale-Hubbell as “peer review” rated for 2008. A Martindale-
Hubbell rating attests to a lawyer’s legal ability and professional
ethics, it reflects the confidential opinions of the bar and judiciary.
A man went to his lawyer and said, "I would like to
make a will but I don't know exactly how to go
The lawyer said, "No problem, leave it all to me."
The man looked somewhat upset and said, "Well, I
knew you were going to take the biggest slice, but I
would like to leave a little to my children too!"
• What is a Guardianship?
• How Does it Work?
• Do You Need One?
• Formal legal proceeding
• It is either an involuntary or voluntary
Meaning: Person agrees or disagrees they
are incapacitated or significantly impaired
and require the appointment of a guardian.
• The Court determines a person’s mental
• If deemed incompetent then:
The Court appoints a guardian of the
person and property of the incapacitated
Guardianships are governed by (New Jersey
Laws N.J.S.A.3B-12-(1) et. seq.) and Court
When is a guardianship appropriate?
Concerned about persons mental
understanding of the world around
Concerned about persons ability to
care for their essential human needs
Concerned about the vulnerability of a person
to physical and/or financial exploitation and/or
There is no signed POA and/or Durable
Healthcare Directive prior to onset of
Who Can File
• Only a:
• Blood or marriage relationship
• Relationship based on contract, trust or
• “stranger” cannot file proceeding.
• Recent case has allowed “social services
agency/organization” for elderly/disabled
to commence proceeding
How Does the
• Complaint filed in Superior Court
Supported by two affidavits of licensed
physician or one licensed psychologist of
addressing persons mental capacity
Appointment by Court of counsel for
individual to investigate person’s competency
and report to court
How proceedings work cont.
• Investigation of the persons circumstances,
physical and mental state
• A personal examination/interview by
physician and court appointed counsel is
• Preparation and filing of written report
• Possible appointment of guardian of the
person/property, pendente lite Cont
• Notice to the incapacitated person is
required (in person service)
• Judicial hearing is conducted after notice to
all interested persons
• Alleged incapacitated person must be
present, unless physically/mentally unable
• Entry of judgment of incapacity:
• Appointing guardian of the person and/ or
• Known as plenary guardianship; or in the
alternative limited guardianship when and
as needed according to facts and evidence
of the case
• After entry of judgment, guardian must
qualify before County Surrogate
• Bond must be posted and premium paid
• Thereafter semi-annual and annual
accountings are filed with County Surrogate
• Durable POA
• What is conservatorship?
• How does it work?
• Benefits and disadvantages of