Attorneys helping to plan for your future

Guardianship and Surrogate Decision Making

What is a Guardianship or its Alternatives for a Special Needs Child or Adult

Some disabilities mean that a person cannot engage in independent decision making. Those adults may need a Guardian or Conservator named by the court. We guide families through this process and advise Guardians, Conservators, and agents under a Power of Attorney on their role and obligations.

Surrogate Decision Making – The process of naming a person to serve as your representative to make legal, medical or financial decisions on your behalf in the event you are unable to do so for yourself.

Guardianship – the legal process one must endeavor to obtain a surrogate decision maker when the person in need does not have capacity to appoint one.


When an individual turns 18 years old they reach the legal age of majority. This includes individuals with an intellectual/developmental disability. This means that parents can no longer legally make decisions for their adult child. It may be appropriate for some to consider establishing guardianship to act on behalf of the individual. Establishing guardianship is a legal process. We will guide you through this process and advise you of your role and responsibilities.

How is Guardianship Obtained?

A guardianship is a legal proceeding whereby the court appoints a surrogate decision maker to act on behalf of a person who lacks the capacity to make his or her own legal, medical or financial decisions.

For the court to appoint a guardian, the court must find that the person cannot govern his or her affairs.

What is the difference between a General and Limited Guardian?

A general guardian exercises all rights and powers of the incapacitated person.

A limited guardian may be appointed when the court finds that the individual “lacks the capacity to do some, but not all, tasks necessary to care for him/herself.” In such case, the court must specify areas which the person has sufficient capacity to manage (for example, residential, educational or vocational decision making)

Surrogate-Decision Making

Power of Attorney

A general durable power of attorney becomes effective upon signing and authorizes another person or persons to make legal and financial decisions on your behalf. Such powers should include, but not be limited to, conducting banking transactions, paying debts, borrowing money, buying and selling real estate, buying and selling other personal property, bringing, defending or settling lawsuits, accessing safe deposit boxes, filing income tax returns, applying for government benefits, and establishing and funding trusts. A person must have legal capacity to sign a Power of Attorney. If they do not, a guardianship must be obtained.

Advance Directive for Healthcare

Advance Directives for health care may encompass both the designation of a health care representative (“a proxy directive”) and/or a statement of personal wishes regarding health care in the event of loss of decision making capacity (“an instruction directive”). A proxy directive appoints a specific person to make decisions regarding life sustaining and any other medical treatment or procedure. An instruction directive educates the healthcare provider and healthcare representative of the person’s wishes at such time or times as he or she shall be unable to make medical decisions. A person must have legal capacity to sign an Advance Directive. If they do not, a guardianship must be obtained.


A person may petition the Court to appoint a conservator. A conservatorship is useful when a person wants to appoint a surrogate financial decision maker in a supervised setting because family members are in disagreement or because he or she has no caregivers whom he or she trusts. The person may have diminished capacity that does not rise to level of mental incompetency. The conservator would be required to account to the court annually or at such intervals as the Court deems appropriate.

Ask a Special Needs Attorney

Many families have limited experience working with attorneys. Learn more about Who We Are and What We Do. Have questions? Take advantage of our Complimentary Consultation.

Wealth Preservation Services

Porzio’s Wealth Preservation attorneys serve New Jersey families with offices in Morristown NJ, Princeton NJ, and New York City. We provide legal counsel on Estate Planning, Elder Law, Asset Protection Planning, Special Needs Planning, Wills and Trusts, Powers of Attorney, Health Care Powers, Living Wills, Probate, Estate Administration, Estate and Trust Litigation, Guardianship, and Tax Planning to families in Bergen County, Essex County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Passaic County,