Most of us probably don’t like to admit it, but we aren’t as unique as we think. If we thought of something, chances are, someone else thought of the same thing before us. And so it is with legal issues.
A significant number of elderly individuals require the assistance of a legal guardian. A guardian is a person who the court appoints to manage the financial, healthcare, and residential affairs of an incapacitated person, called a ward.
A person is incapacitated and requires the assistance of a guardian if she is unable to handle her affairs as the result of physical or mental infirmity. So, a person could be completely mentally capable yet physically incapable and require the assistance of a guardian. Or, she could be physically capable yet mentally incapable and require the assistance of a guardian. Or, as in most cases, the ward could be both physically and mentally incapable of handling her affairs and require the assistance of a guardian.
An older person may, for instance, be suffering from some level of dementia and other physical ailments to the extent that the cumulative effect of all her disabilities make her incapable of handling her affairs without the assistance of another person. Many people think of a person who needs a guardian as being mentally incompetent, but that is not necessarily the case.
When a person needs a guardian, a person, typically a family member, retains the services of an attorney to file a guardianship action on his behalf in superior court. The prospective guardian’s attorney will prepare a complaint to be filed with the court.
A complaint must identify the prospective guardian, the prospective ward, and the ward’s family members. The complaint should give a brief explanation of why the ward needs a guardian and of the ward’s known assets and income.
In some cases, a family member removes a ward from the state of New Jersey in order to stave off a guardianship action. For instance, a son might believe that her mother requires the assistance of a guardian and might wish to serve as her guardian. Meanwhile, a daughter who lives in another state might not want a guardian appointed for her mother. Perhaps the daughter wants the mother to draft a last will and testament through which the mother leaves the entirety of her estate to her daughter to the exclusion of the son.
The daughter, essentially, absconds with the mother, who is suffering from dementia, to another state. In the other state, the daughter cares for the mother, and the mother comes to depend upon the daughter for her everyday needs. Removed from her home, the mother believes she cannot survive without the assistance of the daughter.
After awhile, the daughter takes the mother to a lawyer in the foreign state and has a Will drafted for the mother through which the mother disinherits the son.
If you think this doesn’t happen, you’d be wrong. Things like this happen more frequently than you would imagine. Furthermore, by removing the mother from the state of New Jersey, the daughter, in my hypothetical, places the son in a difficult situation.
This country is called the United States of America because we are fifty states united as one country, but each state is its own sovereign governmental entity with, to a large degree, its own laws. If mom is living in the other state of her own accord, then the first state doesn’t have jurisdiction over the mother; however, if the mother were removed from her home state and is being held in the other state effectively against her will, then the first state should retain jurisdiction over the mother because the mother is not living in the second state of her own free will.
It’s impossible to wholly eliminate this type of problem. Families with this level of discord, and there are many, are going to cause problems for one another no matter what, but having a well-drafted estate plan could help stave off problems such as these.