A Well-Written and Thorough Durable Power of Attorney is a Real Alternative to Guardianship in New Jersey
Because a guardianship involves a profound loss of freedom and dignity, New Jersey law requires that such a guardianship be imposed only when less restrictive alternatives do not exist or have been proven to be ineffective. Did you know there are effective legal alternatives to a guardianship? If you continue reading this page, you will learn about these important alternatives.
What is a Power of Attorney
A power of attorney is a legal document that grants legal rights and powers by a person (called the “principal”) to another person or representative (called the “agent” or “attorney-in-fact”). This representative is often referred to as the attorney-in-fact and agent. He or she stands in the shoes of the principal and acts for him or her on financial, business, health care decisions and/or personal life care matters. In most cases, even when the power of attorney is immediately effective upon signature, the principal doesn’t intend for it to be used unless and until he or she becomes incapacitated or incapable of handling his or her affairs.
A power of attorney is the most effective and least costly alternative to a court ordered guardianship. Fredrick P. Niemann, an attorney of 40+ years and located in Monmouth County, New Jersey, often advises his clients to have a comprehensive durable power of attorney prepared to address not only financial issues, but such seldom thought of issues such as life care planning, personal decision planning, medical and health care planning and long term care planning to preserve and protect a lifetime of savings and income from the skyrocketing costs of institutional care.
Did you know that in New Jersey…
A husband does not have legal authority to make decisions for his wife.
A wife does not have legal authority to make decisions for her husband.
Did you also know that in New Jersey…
A parent does not have the legal authority to make decisions for their disabled adult child.
Especially as between a husband and wife or a parent and adult child, the law does not delegate legal decision making in favor of a spouse or child in the absence of a written power of attorney, guardianship or conservatorship. It’s a shock to clients when I tell them they can’t legally make decisions for their sick spouse or adult incapacitated child. Often, we must take extraordinary steps to solve the problem by a legal filing with the Superior Court known as guardianship which could have been avoided by a qualified and comprehensive legal document called a Durable Power of Attorney (POA).
Why a Power of Attorney in New Jersey is So Important
Representative or Protective Payee as a Form of NJ Power of Attorney can be used in place of a NJ Guardianship
A representative payee is another type of power of attorney. This person is appointed to manage Social Security, Veterans’ Benefits, Railroad Retirement, public assistance and/or other state and federal benefits or entitlement program payments on behalf of an individual. The representative or protective payee acts much like an attorney-in-fact, but for the limited purpose of assisting another person in a benefits program.
Conservatorship in NJ as an Alternative to a NJ Guardianship
In some states like New Jersey, a proceeding to protect the finances of an adult is called a “conservatorship.” Like a guardianship, a conservatorship is a court-supervised arrangement for a person who cannot handle his or her own financial affairs (called the “conservatee”). The person appointed to oversee the affairs of another is called the “conservator.”
A conservatorship can cover the “financial estate” only (meaning the conservatee’s assets and income). In New Jersey, a conservatorship does not cover the life care needs of a “person” (meaning the conservatee’s physical well-being). Unlike the guardianship of the person, there is no such thing as a “conservatorship of an incapacitated person”. If that is what is needed then your only option is a guardianship.
A conservatorship proceeding is voluntary. In other words, it can’t be forced upon a person who does not want someone else to handle his or her affairs. To start a conservatorship, the person needing assistance (called the “conservatee”) petitions the Superior Court (probate part) to appoint a designated individual (called the “conservator”) to manage his or her financial affairs.
Because a conservatorship is voluntary, if the proceeding becomes involuntary, for example, when the proposed conservatee opposes having someone appointed to oversee his or her affairs, then an involuntary guardianship is required. When the proceeding is involuntary, it goes before a judge for a trial to determine if the proposed conservatee has the capacity to handle his or her own financial affairs.
A Revocable or Living Trust is a Very Good Alternative to a NJ Guardianship or Conservatorship and Even a Power of Attorney
A revocable trust, often referred to as a “living trust” can also be set up to hold a person’s assets, with a relative, friend or financial institution serving as trustee. The creator of the trust can be a co-trustee of the trust with another individual who will take over the duties of trustee should that person become incapacitated. By having a trust document prepared that includes the necessary life care and financial planning features described here, a guardianship and conservatorship can be avoided.
Thank you, Diane, and all your staff for the efficient and detailed work you and they do. The gentleman (Craig Barker) from Investors Bank was impressed with the POA’s I forwarded him from your office. I told him I would recommend your services to anyone and everyone.
Thank you again,
If you have questions about Powers of Attorney, conservatorship or the use of trusts,
Contact NJ Elder Law attorney, Fredrick P. Niemann, Esq. at
or e-mail him at
Set up an office consultation at your convenience. He is easy to talk to and will answer your questions in plain, simple English.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Power of Attorney Lawyer
A New Jersey Power of Attorney | A Real Alternative to Guardianship in New Jersey