A guardianship is a procedure through which an individual, called the “ward,” is adjudicated to be an incapacitated individual by a court. Another person, called the “guardian” is appointed by the court to make decisions (financial, health, and residential) for the ward.
Guardianships are most frequently needed for individuals who have failed to plan for incapacity. For instance, an individual who has failed to sign a power of attorney for financial decisions and a living will for healthcare decisions would probably need a guardian appointed for him if he were ever incapacitated. The incapacitated person may be involved in an accident or suffer the traumatic onset of an illness, such as a stroke. One moment the person is functioning and the next, they are not.
Having a power of attorney and living will can avoid the need for a guardianship in most instances, but not in all instances. For instance, not all powers of attorney are the same. I frequently have people come to my office asking me to assist them with Medicaid planning for a family member. The client’s husband may have suffered a stroke and now requires nursing home care. Faced with $10,000 a month in nursing home bills, the client wants me to qualify her husband for Medicaid benefits, as Medicaid will assist with the payment of the nursing home bill.
One of my first question is, “Do you have a power of attorney for your husband?” I will then examine the power of attorney, and if the document fails to address or fails to address adequately the issue of gifting, I will inform the client of the need to obtain guardianship over her husband and seeks the court’s permission to gift assets.
In order to address adequately the issue of gifting, the power of attorney must specifically permit the power of attorney agent (the wife) to gift her husband’s assets in unlimited amounts. In other words, the gifting authority cannot say something such as “My agent can gift $13,000 a year,” because if the husband has $300,000 of asset in his name, the ability to gift $13,000 a year isn’t going to help much.
If the power of attorney lacks sufficient gifting authority, I can frequently assist the client in obtaining the court’s permission to engage in Medicaid planning/gifting in the context of a guardian proceeding.
The key to avoiding a guardianship in 90% of the cases is having a living will and well-drafted power of attorney in place ahead of time. The other 10% of cases involve situation in which the family must do something for the incapacitated person that he simply refuses to do for himself.
A power of attorney and living will are voluntary sources of authority. As a person’s power of attorney agent, you cannot force the person to do anything, so for instance, if the wife wants to place her husband in a nursing home because she simply cannot care for him at home and his being at home has become a danger to himself and others, the wife cannot force the husband to enter a nursing home even if she is his power of attorney agent.
Sometimes, in cases such as this, I help clients become guardians for family members, even if the family has a well-drafted power of attorney and living will.
Next, I’ll discuss the procedure for obtaining guardianship over a ward in New Jersey, particularly my experiences in Monmouth, Middlesex, and Ocean counties, New Jersey.
Understanding New Jersey guardianship laws helps families make informed choices and ensures that a loved one’s rights and well-being are protected.
Guardianship is a serious step that removes certain personal rights, so it should not be taken lightly. Understanding the process and available alternatives can help families make more informed decisions when support is needed.