Becoming Guardian for an Elderly Father Should Be Last Resort

HNW Elder Law, Guardianship Law

Questions about how to go about becoming a parent’s legal guardian are asked every week.  Often by siblings who are at odds with other siblings over a parent’s care. A child believes Dad needs assisted living and the others think he belongs at home where he is comfortable. He’s very frail but has his faculties. The sister won’t listen and Dad won’t comment because he doesn’t want to play favorites. Brother and sister are constantly fighting about this. In this emotionally charged discussion motivated by genuine parental concern, either child could pursue becoming their father’s legal guardian, but I would only reluctantly recommend it. It’s an expensive process, would be traumatizing for everyone, and probably damage your relationship with the …

A Legal Guardian Can Create a Trust for the Benefit of a Minor Child  

HNW Elder Law, Guardianship Law

Question A parent dies with a large estate and leaves behind a minor child(ren). The decedent was divorced when he/she died. How can the surviving parent, if appointed legal guardian, protect the child’s estate from wasteful decisions and actions. The Law The guardian statute(s) provide procedure for setting up a trust on behalf of a minor child. Codified at N.J.S.A. §3B:12-54.1, a parent  or guardian may apply to the Superior Court, Chancery Division, Probate Part to get permission to set up a protective trust for the benefit of a minor child or children when they would otherwise be receiving assets from an intestate estate when they are under 18 years of age. The application to the Surrogate’s Office can be …

Guardianship and Your Right to Vote

HNW Elder Law, Guardianship Law

A colleague who knows of my extensive guardianship law background asked if he was correct in his thinking that a person declared to be incapacitated continues to retain the right to vote unless that right is specifically taken away in the judgment of guardianship. He is correct. Under NJ law, an incapacitated person retains the right to vote unless the guardianship judgment states otherwise. However, that is not the law in about 10 States so if there’s a possibility that the person may not stay in New Jersey it may make sense to have the judgment specifically state that the person retains the right to vote wherever he/she resides. To explain the New Jersey Constitution states that “no person who …

Does a Guardian of an Estate Have the Power to Execute a Beneficiary Designation Form?

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Guardianship Attorney I was recently asked a question about the title of this blog wherein the Judgment of Incapacity and Appointment of Guardian did not have a specific provision authorizing the Guardian of the Estate of an incapacitated person to complete a beneficiary designation form for the person’s inherited IRA. In this case, the person had no estate plan and he inherited a substantial account from his predeceased spouse but now he was incapacitated. The judgment approving the guardianship did not specify an estate planning power for non-probate assets. In my research, I cannot find any broad power which permits a guardian to designate …

Can a Guardian Transfer Assets of a Disabled Person Into a Special Needs Trust Without Going to Court

HNW Elder Law, Guardianship Law, Special Needs Trusts for Minor Children and Adults

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County New Jersey Guardianship and Special Needs Attorney Recently a family member met with me about an issue she was experiencing as a guardian to her disabled SSI adult niece. She was told she could establish a Special Needs Trust as Guardian but the “transfer of assets into the trust” must be done pursuant to a court order. In this case the person was in urgent need of Medicaid to cover her significant medical costs. The Aunt is concerned that getting court approval delays the process even more. To me the law is clear. Federal statute permits a guardian to establish a first party special needs …

Standby Guardianship in NJ:  An Interesting Concept

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County NJ Guardianship Attorney I was reading an article about guardianship that I thought was worth summarizing for my readers.  The article was about a Standby Guardian.  A Standby Guardianship is an individual appointed by a parent for the benefit of his/her child in the event the parent dies, or becomes incapacitated or is unable to care for the child while alive. Think of a Standby Guardian as a person who is “on call,” ready to take over or help with the care of a child or disabled adult. A Standby Guardian serves on a temporary basis until a permanent Guardian is appointed by the court. A Standby Guardian is appointed …

Why Is a Guardianship Necessary in New Jersey?

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold Township, Monmouth County, NJ Guardianship Attorney One of the most important reasons to have a guardianship in place is to expedite medical treatment needed by the disabled person. Doctors and hospitals under certain conditions may refuse to perform non-emergency procedures on disabled patients without legally authorized consent. A guardian can provide legal consent to authorize a medical procedure. Having a legal guardian appointed is also necessary in order to give consent on behalf of a person in situations regarding their well-being, such as consenting to treatment plans, consenting to the use of medications, acknowledging receipt of rules, regulations and rights, and signing various forms regarding benefits, procedures, etc. A guardianship …

How Guardians Are Compensated in New Jersey

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. a NJ Guardianship Attorney Guardians are reimbursed for expenses, and paid for their services, from the assets of the person they are taking care of. Payments must be “reasonable” in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court. Financial Support for Someone under a Guardianship A conservator isn’t required to support the guardian, just to manage the guardians’ own assets and make personal decisions for him or her. A financial guardian does have the responsibility to seek all financial benefits and coverage for which the guardian may qualify. …

Understanding the Basics of a Guardianship Proceeding in New Jersey

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County, NJ Guardianship Attorney The best way to avoid a guardianship is for an older person to prepare a durable power of attorney before a health crisis occurs. That way, someone handpicked will be able to step in to make financial and medical decisions if necessary. But what happens when a guardianship proceeding is filed? The Court Process and Guardianships Anyone — including the proposed guardian, family members, and friends — may object to a guardianship in general, or to the specific choice of a proposed guardian. Someone who wants to block a guardian must file papers with the court, inform all interested parties (the proposed guardian, family members, and possibly close …

What is the Difference Between a Conservatorship and Adult Guardianship in New Jersey?

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann a Monmouth County, NJ Guardianship Attorney A conservator in a NJ conservatorship has the court-ordered authority and responsibility to manage the affairs of those who can no longer make their own decisions about finances.  If the incapacitated person had planned ahead and signed a durable financial power of attorney for finances, before becoming incapacitated, that person won’t need a conservator because the person named in the document takes charge.  However, if no planning has been done which is a common situation and then family members must ask a court to appoint a conservator or guardian. How a Conservatorship differs from an Adult Guardianship under NJ Law New Jersey conservatorships are often called …