In New Jersey, a child is considered an emancipated person at age 18, regardless of the severity of disability. As a result, parents of special needs children no longer have the legal right to make medical, legal, financial or personal decisions for children over age 18 even if the child is unable to do so him or herself. Parents often must be appointed guardian for their disabled child to acquire the legal authority to oversee and assist with their child’s affairs.
A guardianship is a formal court action initiated by filing a complaint in the Superior Court of New Jersey. Effective September 1, 2016, the NJ Court Rules were modified making it easier to file guardianship applications for persons eligible for and/or receiving services from the Division of Developmental Disabilities (DDD). Previously, a guardianship complaint required an affidavit from a physician or psychologist who personally examined the child within 30 days of filing the complaint. The revised rules have extended the examination period to 6 months – making it significantly easier to comply with the time requirements.
The revised court rules have also expanded the supplemental documentation that may be filed with the complaint. Previously, an affidavit from a second doctor or officer from DDD was required. Now, in lieu of additional affidavits, either a copy of an Individualized Education Program (IEP) prepared within 2 years or a certification from a licensed care professional with knowledge of the child’s functional capacity are acceptable. Since most individuals who receive or are eligible for services from DDD have a current IEP, the steps required to pursue a guardianship are now simpler, less expensive and more user friendly.
Richard I. Miller is Chair of the Special Needs Department at Mandelbaum Salsburg in Roseland, NJ. Richard concentrates his practice in Special Needs Planning, Guardianships, Elder Law and Probate Litigation. He is a Certified Elder Law Attorney though the National Elder Law Foundation and has been selected as a New Jersey Super Lawyer from 2010-2016. Richard is a frequent lecturer on the topics of guardianships and planning for families with special needs children. He is married and a father of three. Most of his free time is preoccupied with his second job — Head Coach for Montclair Hockey Club for the Midget 16U team.