A New Jersey Power of Attorney as an Alternative to Guardianship

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 arrangements be imposed only when less restrictive alternatives have been proven to be ineffective. Did you know there are effective alternatives to guardianship?  These less restrictive alternatives include:

A Power of Attorney Also Known as a Durable Power of Attorney (POA) Can Be Used as an Alternative to a NJ Guardianship

A power of attorney is the grant of legal rights and powers by a person (called the "principal") to another (the "agent" or "attorney-in-fact"). The attorney-in-fact and agent stands in the shoes of the principal and acts for him or her on financial, business, health care decisions and/or personal matters. In most cases, even when the power of attorney is immediately effective, the principal doesn't intend for it to be used unless and until he or she becomes incapacitated.  

A power of attorney is the most effective and least costly alternative to a court sanctioned guardianship.  Fredrick P. Niemann, an attorney of 30 years, Freehold, Monmouth County, New Jersey, Bergen County, New Jersey, often advises his clients to have a comprehensive power of attorney prepared which addresses 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 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 lawdoes 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 have to 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).

(2) Representative or Protective Payee as a Form of NJ Power of Attorney can be used in place of a NJ Guardianship

This is a person appointed to manage Social Security, Veterans' Administration, Railroad Retirement, public assistance or other state or 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 a particular program.

(3) 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 "estate" only (meaning the conservatee's financial matters).  In New Jersey, it does not cover the "person" (meaning the conservatee's physical well-being) or a "conservatorship of the person".

A conservatorship proceeding in New Jersey must be voluntary, where the person needing assistance (called the "conservatee") petitions the probate court to appoint a specific person (the "conservator") to manage his or her affairs.

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 affairs.

(4) A Revocable or living trust is a very good alternative to a NJ Guardianship

A revocable or "living" trust can also be set up to hold a person's assets, with a relative, friend or financial institution serving as trustee. Or the older person can be a co-trustee of the trust with another individual who will take over the duties of trustee should the older person become incapacitated.  By having a trust document prepared with the necessary life care and financial planning features included, a guardianship can be avoided.

If you have questions about Power of Attorneys, conservatorship, trusts or elder law, contact Fredrick P. Niemann, Esq. at 888-800-7442 or e-mail him at fniemann@hnlawfirm.com to set up an office consultation at your convenience.  He is easy to talk to and will answer your questions in plain, simple English.

Power of Attorney lawyers serving these New Jersey Counties:

Monmouth County, Ocean County, Essex County, Cape May County, Mercer

County, Middlesex County, Bergen County, Morris County, Burlington County,

Union County, Somerset County, Hudson County, Passaic County

NJ Power Of Attorney Lawyer

 

A New Jersey Power of Attorney - A Real Alternative to Guardianship in New Jersey