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?
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
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
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?
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
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
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?
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 …
New Jersey Introduces the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (the“UAGPPJA”)
By Fredrick P. Niemann, Esq. a New Jersey Guardianship Lawyer The UAGPPJA Act has been introduced in New Jersey among other states. It’s about time. Oftentimes, problems with a guardianship develop even without a guardianship dispute. When everyone agrees that an already existing guardianship or conservatorship should be moved to another state, few states have a streamlined procedure for transferring guardianship to another state or for accepting such a transfer. In most states, all of the procedures for an original guardianship appointment must be repeated, a time consuming and expensive prospect. Article 3 of the UAGPPJA is designed to provide an expedited process for making guardianship transfers to another state, thereby avoiding the need to re-litigate incapacity and/or whether the …
Gifts, Wills, and Guardians: A Case Study (Part 3 of a 3-Part Post)
By Fredrick P. Niemann, Esq. a New Jersey Guardianship Attorney So far, in my last two blog entries, I have discussed the fight over Henrietta’s estate plan, who prior to being declared incapacitated in 1997, established an estate plan designed to benefit both of her boys and their families, and was specifically designed to place her one child’s, Howard’s, share in trust to bypass his wife Jacqueline. After being declared incapacitated, the settlement placed on the record included a gifting plan that specifically includes a distribution to Jacqueline to be placed into trust for her, through which she could access a portion of the funds right away. Jacqueline’s stepdaughter, Michele, contested this plan, arguing there was no settlement consented to …