Guardianship of the Estate
GUARDIAN OF THE ESTATESUMMARY OF RESPONSIBILITIESAsk the question:If aguardianshipof the estate isneeded,initially youmust:As soon aspossible afterthe Judgmentis entered,you must:Afterqualifying asguardian ofthe estate,you must: IS GUARDIANSHIP OF THE ESTATE NECESSARY? See sections 1.1 and 1.2. Review the Guardianship of the Estate Training materials (written guide andvideo) as early as possible. Review the Guardianship Forms materials (written guide and video). Determine whether you can post a surety bond, if required. Appear for the guardianship hearing, if required. Qualify before the County Surrogate, including posting a surety bond ifrequired. You CANNOT act as guardian until you qualify. Obtain Letters of Guardianship and, if needed, Short Certificates.o In most cases, fees must be paid to the Surrogate for Letters and/orShort Certificates. Open a separate guardianship bank account. Obtain a tax identification number for the guardianship bank account. Retitle assets and accounts in the name of the guardianship. Maintain records of guardianship account transactions. Investigate and inventory the incapacitated person’s assets and liabilities.o If required by the Judgment, file an initial inventory with the courtand send copies to interested parties. Keep original papers (insurance policies, deeds) in a safe and secure location. File periodic reports as to the estate of the protected person, if required. Discuss decisions with the protected person, and consider their input andpreferences. If the incapacitated person’s preferences are unknown or potentially harmful,make decisions based on what you believe is in their best interest. If a surety bond is required, continue to pay premiums to maintain the bond. Notify the Surrogate of any changes to your address, or to the address of theincapacitated person. Inform the Surrogate upon the death of the incapacitated person.You mustNOT: Accept gifts from the incapacitated person without specific court approval. Give gifts from the guardianship estate, unless approved by the court. Take payment beyond the commissions authorized by statute. Entrust your guardianship duties to anyone else, unless authorized by statute.i
TABLE OF CONTENTS1. INTRODUCTION . 11.1 Is Guardianship of the Estate5. RECORDKEEPING . 95.1 What Types of Records Should YouNecessary? . 1Keep? . 91.2 When Guardianship of the Estate is5.2 Tracking Minimal Assets/Estates . 9NOT necessary . 25.3 Original Papers . 101.3 Responsibilities of a Guardian of the5.4 Retention Period . 10Estate . 31.4 Letters of Guardianship. 31.5 Short Certificates . 32. SURETY BONDS . 42.1 Why a Bond Would Likely BeRequired . 42.2 Determining Whether You Can Postthe Required Bond . 42.3 Cost of a Surety Bond . 52.4 How to Obtain a Bond . 53. GUARDIAN LIMITATIONS /RESTRICTED ASSETS . 64. ACCESS AND MANAGE PROTECTEDPERSON’S ACCOUNT(S) . 74.1 Open Guardianship Account(s) . 74.2 How Should Assets be Retitled? . 74.3 Recording Transactions . 8ii5.5 Pay/Transfer on Death . 106. NOTICE TO SERVICE PROVIDERS . 117. GUARDIAN REPORTING . 127.1 Guardianship Estate Inventory . 127.2 What is a Guardianship Accounting(i.e., Periodic Reporting)? . 137.3 Comprehensive Accounting Formversus EZ Accounting Form . 138. GUARDIANSHIP MONITORINGPROGRAM (GMP) . 159. SUBSTITUTED JUDGMENT/BESTINTEREST . 169.1 Substituted Judgment . 169.2 Best Interest Standard . 179.3 Tough Decisions . 17
10. GIFTING . 1811.2 Attorney’s Fees: Can You Hire anAttorney? . 2010.1 Accepting Gifts from the Protected12. ACTION REQUIRED UPONPerson . 18PROTECTED PERSON’S DEATH . 2110.2 Giving Gifts . 18FREQUENTLY ASKED QUESTIONS10.3 General Gifting Considerations . 18(FAQ) . 2211. PAYMENT FOR SERVICE AS THEGUARDIAN OF THE ESTATE . 20GLOSSARY OF TERMS . 2611.1 Commissions andReimbursement . 20iii
1. INTRODUCTIONSome legal and non-legal language in the realm of guardianships may be new toyou. For your reference, a Glossary of Terms is included in this guide. The termsdefined in this glossary are in bold font, italicized and marked with a daggersymbol (†) where they first occur in the text.After viewing the contents of this guide, youwill be able to:IT IS EXTREMELYIMPORTANT THATPROSPECTIVE GUARDIANSBECOME FAMILIAR WITHTHE DUTIES OFGUARDIANSHIP BEFOREACCEPTING APPOINTMENT. Fully consider the responsibilities of a Understand what a surety bond† is andwhy it is required Follow best practices for managingdocuments and records Understand guardian reporting requirements Recognize the difference between substituted judgment† and best interest†when making decisions about spending that impact the welfare of theguardian of the estate †protected person†Also, as part of the qualification† process, you must file an acceptance that includesan acknowledgement that you have received these materials, understand thecontents, and knowingly agree to take on the duties of guardianship.1.1 Is Guardianship of the Estate Necessary?Individuals considering guardianship are often concerned about having sufficientauthority to handle all of that person’s affairs. Typically, many people who applyto be appointed as guardians ask for appointment as guardian of both the personand the estate. As you will learn from this guide, the responsibilities of a guardianof the estate are significant. These duties, including the obligation to file periodicreports unless waived by the court, take time and effort.If an incapacitated person† has an estate—like income from earnings or pension,real property, stocks and bonds, etc.—then it is likely necessary that a guardian†See Glossary of Terms1
be appointed to take control of these assets and manage the estate. However, if aprotected person has no estate, then it is not appropriate or advisable to seekappointment as guardian of the estate.Carefully evaluate whether appointment as guardian of the estate is necessary.Review the Guardianship of the Person guide to understand the responsibilitiesof serving as a guardian of the person† only. If you are uncertain about whichappointment is needed, consider consulting with an attorney. You will findcontact information for local lawyer referral services on the Judiciary websiteWWW.NJCOURTS.GOV (search lawyer referral services).If you have applied for appointment as guardian of both the person and the estateand decide that guardianship of the estate is unnecessary, you must inform thecourt prior to entry of the Judgment†. Although Judiciary staff cannot providelegal advice or assist you in presenting your case, general questions regarding thistopic may be addressed to the County Surrogate†.1.2 When Guardianship of the Estate is NOT necessaryBy far, the most common situation in which guardians of the estate areunnecessarily appointed is when an incapacitatedSOMEONE CAN SERVE ASperson has no assets (no real property, no personalproperty of substantial value) and receives onlyREPRESENTATIVE PAYEESocial Security income. For example, a parent ofFOR SOCIAL SECURITYa disabled adult child or a child of an elderly parentWITHOUT BEINGcan serve as representative payee for SocialAPPOINTED AS GUARDIAN Security without being appointed as guardian ofOF THE ESTATE.the estate.A representative payee files reports with the Social Security Administration(SSA) and is subject to oversight by the SSA. If such a person is appointed asguardian of the estate, then he or she must additionally file reports with theCounty Surrogate—subject to court review. Some guardians find this processduplicative of the reporting to the SSA.When a protected person has no estate, it may be better to seek appointment asguardian of the person only. If the protected person acquires assets in the future(like an inheritance), you may then consider the need for you or someone else tobe appointed as guardian of the estate (in addition to the guardian of the person).†See Glossary of Terms2
1.3 Responsibilities of a Guardian of the EstateAs a guardian of the estate, your first priority is to gather together and protectthe assets of the guardianship estate. This guide describes a number of differentways that you can take control of the assets—on behalf of, and for the benefit of,the guardianship estate.1.4 Letters of GuardianshipEntry of the Judgment by the Superior Court judge † establishes theguardianship. Until the guardian qualifies before the County Surrogate,however, he or she has no legal authority to act as guardian. For example, aguardian who has not yet qualified cannot access the incapacitated person's bankaccounts.To qualify, the guardian must sign certain documentsreflecting acceptance of the guardianship. If requiredby the Judgment, a guardian of the estate must posta surety bond. Modest fees must be paid to theSurrogate for the issuance of Letters ofGuardianship†. You should keep these originalletters in a secure location, such as a safe or safetydeposit box, and should not turn them over to any other person or facility.Qualification may occur immediately following the guardianship hearing, andmust occur as soon thereafter as possible.UNTIL A GUARDIANQUALIFIES BEFORE THECOUNTY SURROGATE,HE OR SHE CANNOTACT AS GUARDIAN.1.5 Short CertificatesWhen you qualify as guardian of the estate, or at any time during theguardianship, you may apply to the Surrogate for short certificates†. Shortcertificates contain the basic information set forth in the Letters of Guardianship,stating that by Judgment of a particular date, you were appointed as guardian ofthe estate of a named incapacitated person. A short certificate will also state thatas of the date it was issued, the guardianship remains in effect. As guardian ofthe estate, you may obtain additional up-to-date short certificates to provide tobanks and other financial institutions as proof of your continuing authority.†See Glossary of Terms3
2. SURETY BONDS2.1 Why a Bond Would Likely Be RequiredWhen you are appointed guardian of the estate, the court will typically order thata surety bond be posted to cover all the assets that belong to the protected person.Like an insurance policy, a bond safeguards the assets of a protected person.If a guardian misappropriates (steals) or misuses the protected person’s funds,does not maintain those funds, or does not keep accurate records, the court mayrequire that the guardian’s bonding company reimburse the incapacitatedperson’s account for any losses. The bonding company can then file a lawsuitagainst the guardian of the estate to recover theamount the company was required to pay, including,LIKE AN INSURANCEin some cases, the attorney’s fees incurred by thePOLICY, A BONDbonding company in seeking the reimbursement. ASAFEGUARDS THEguardian of the estate who engages in theft or fraudASSETS OF Acan be removed by the court when appropriate andPROTECTED PERSON.may be criminally prosecuted.2.2 Determining Whether You Can Post the Required BondIf you are applying to be appointed as guardian of the estate, you shouldanticipate that the court may require you to post a surety bond.Unfortunately, some guardianship casesproceed to entry of Judgment, and the guardianonly discovers after he or she is appointed thatthey cannot get the bond—often due to creditissues.This situation requires anotherapplication to court to amend the Judgment,either by adding or substituting a differentindividual or institution as guardian, or by restricting the authority of theguardian to only those assets for which he or she can be bonded. The additionallegal proceedings will prolong the period of time when the incapacitated personis without a guardian and potentially exposed to risk.IT IS VERY IMPORTANT TODETERMINE WHETHER ORNOT YOU CAN POST THEREQUIRED BOND BEFOREANY JUDGMENT IS ENTERED.4
2.3 Cost of a Surety BondThe price of the bond, that is, the bond premium, can be paid from (or reimbursedthrough) the guardianship estate. However, the prospective guardian of theestate must first post the bond in order to complete the qualification process. Theamount of the bond will ordinarily be based onthe principal value of the incapacitated person’sIF THE VALUE OF THEproperty plus one year’s anticipated income,ESTATE CHANGES, YOUless the value of any restricted asset(s) †.MAY REQUEST A COURTORDER EITHER REDUCINGOR INCREASING THEAMOUNT OF THE BOND.Since one of the duties of a guardian is to keepthe court informed of any significant changes inthe circumstances of the incapacitated person,you cannot simply keep quiet about substantial changes to the amount of theguardianship estate. Especially if the guardianship estate has diminished, it isoften necessary to apply for modification of the bond amount in order to preservethe assets of the incapacitated person, because the fee charged for the bondpremium is related to the value of the bond (i.e., the premium for a bond on a 200,000 estate is less than the premium for a bond on a 2,000,000 estate).2.4 How to Obtain a BondIF YOU ARE REQUIRED TOOBTAIN A BOND, YOUSHOULD DO SO PROMPTLYAFTER YOUR APPOINTMENTAS GUARDIAN—IN ORDERTO QUALIFY.As noted earlier, you cannot act as guardian ofthe estate until you post the bond and completequalification. Generally, after the judge signsthe Judgment, the County Surrogate willpromptly prepare the bond paperwork that youwill need to take to the bond company.The court cannot recommend a bond company. Through a local insurance agent,you are free to choose a licensed bond company from which to purchase the bond.A bond company will likely require your completion of an application includinginformation about your finances and credit history as well as financial data aboutthe guardianship estate. If approved for the bond, you must post the requiredbond—that is, file proof of the bond with the County Surrogate—in order toqualify as guardian of the estate.†See Glossary of Terms5
3. GUARDIAN LIMITATIONS / RESTRICTED ASSETSWhen a court restricts an asset it means that you are not allowed to use, sell, ortransfer that restricted asset without the court’s approval. The court can restrictany asset of the protected person’s estate but typically restricts real property.When the court restricts an asset, the restriction is outlined in the Judgment andthe Letters of Guardianship so that all parties know what you can and cannot doas guardian of the estate.If the court restricts an asset, you will not need to have its value covered by thebond. However, if you request that the restriction be lifted, the court may orderthat a bond be posted for the asset to beunrestricted.RESTRICTED ASSETS AREMost often, this occurs when a guardianapplies for court approval to sell real propertythat was previously restricted. If the proposedsale is granted, the amount of the guardian’sbond is typically increased by the estimatedproceeds of sale, less any related expenses (i.e.,realtor’s commission, closing costs).6OUTLINED IN THEJUDGMENT AND THELETTERS OF GUARDIANSHIPSO THAT ALL PARTIESKNOW WHAT YOU CANAND CANNOT DO ASGUARDIAN OF THE ESTATE.
4. ACCESS AND MANAGE PROTECTED PERSON’S ACCOUNT(S)In order to manage a guardianship bank orbrokerage account, to do business on behalf ofthe protected person, you will need to notify thefinancial institution of your appointment. Whenyou first meet with the financial institution besure to bring an up-to-date short certificate,along with a copy of the Judgment. Most banks’legal departments will want to see your shortcertificate in order to allow you access to theaccount. Also, if you have access to the protectedperson’s social security number, date of birthand bank account number(s), be sure to bringthat information with you as well. DO NOT USE YOUROWN SOCIAL SECURITYNUMBER IN OPENINGGUARDIANSHIPACCOUNTS. DO NOT COMMINGLEGUARDIANSHIP FUNDSWITH YOUR OWNMONEY. DO RETITLE ASSETS.4.1 Open Guardianship Account(s)OBTAIN A TAXIDENTIFICATIONNUMBER FOR THEGUARDIANSHIPESTATE.Upon appointment as guardian of the estate, you mustopen a checking account, and if appropriate, a savings ormoney market account for the guardianship estate. Youmust not use your own Social Security number in openingthe guardianship account(s). For information aboutobtaining a tax identification number, contact theInternal Revenue Service (IRS) by visiting: www.irs.gov.4.2 How Should Assets be Retitled?Once you have presented your short certificate of guardianship, the account(s)will be retitled into the name of the guardianship. The way the account is titleddepends on the institution; some may title the account as “Jane Doe,incapacitated person, by John Doe, guardian”; others may title it as “Jane Doe”and then the next line will read “John Doe, guardian of the estate.”The purpose of retitling accounts is to notify the institution (e.g., bank, brokeragefirm, Department of Motor Vehicles) that you are an authorized person whoshould be directing how the asset is held, spent, or managed. If the incapacitatedperson has more than one bank account, then you should consider combining thefunds from these accounts into a singular guardianship account—being mindfulof the Federal Deposit Insurance Corporation (FDIC) coverage limits.7
If you are responsible for a large guardianship estate, it is advisable to consultwith an accountant or financial advisor as to the management of the estate.NOTE: Assets titled as Payable-on-Death or Transfer-on-Death to an individualare considered part of the protected person’s estate plan, which you havean obligation to maintain. See section 5.5 Pay/Transfer on Death of thisguide for more information regarding how to handle assets that aretitled in this manner.4.3 Recording TransactionsYou should be very careful not to let any other individual have access to anyguardianship bank accounts you manage.While there is no law that prohibits you from using a debit card or cash totransact business on behalf of the protected person, it is best to avoid thesemethods whenever possible.Debit cards can be easily accessed by another individual, and it is difficult toprove that a cash transaction was used for the benefit of the protected person.If it is necessary to use cash for a purchase, be sure to keep all receipts to provethe purchase was for the benefit of the incapacitated person. If there is achallenge to your handling of the guardianship assets, you may be required toproduce the receipts to back up the expenditures.8
5. RECORDKEEPING5.1 What Types of Records Should You Keep?GOOD PRACTICE TIPS MAINTAIN THE ASSETS OFTHE INCAPACITATEDPERSON SEPARATELY ANDDO NOT COMMINGLE† WITHTHOSE OF THE GUARDIANOR OTHERS. DEVELOP AND MAINTAINA RECORDKEEPING ANDSTORAGE SYSTEM FOR ALLOF THE PROTECTEDPERSON’S DOCUMENTS.You are required to keep records of the incomeand expenses you manage as the guardian of theestate. The types of records you retain dependon factors such as the value of the estate, thetypes of assets that you handle, and the type ofreporting required to be submitted to the court,if ordered in the Judgment. Such records mayinclude bank statements, brokerage statements
GUARDIANSHIP BEFORE ACCEPTING APPOINTMENT. 2 be appointed to take control of these assets and manage the estate. However, if a protected person has no estate, then it is not appropriate or advisable to seek appointment as guardian of the estate. .
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This matter camebefore the Court on a Petition to Transfer Guardianship. The Court finds that the Petition to Transfer Guardianship was provisionally granted and a Provisional Order to Transfer Guardianship was filed in this case. The Court further finds that a Provisio Order nal to Accept Transfer of Guardianship hasbeen filed in the other State.
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iii. Take the bond letter of acceptance (the Bond may require a signature of a judge), the Guardian Oath and the Letters of Guardianship to Clerk of Court c. If the guardianship is a Medicaid case i. Fax or deliver a copy of the Court Order and your Letters of Guardianship to your local Department of Social & Health Services. ii. 2.
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