Legal Guardianship of a Parent or Adult Family Member

Legal Guardianship of a Parent or Adult Family Member.

Kenneth Vercammen’s Office represents persons seeking legal Guardianship of a Parent or Adult Family Member.

       Occasionally an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. If a legally prepared power of attorney was signed, a trusted family member, friend or professional can legally act on that person’s affairs. If a power of attorney was not signed, your attorney must file a formal complaint and other legal pleadings in the Superior Court. The Guardianship Complaint will request a Court Order and Judgment to permit a trusted family member, friend or professional to handle financial affairs.

       A Power of Attorney is generally given by one person to another in case the grantor becomes ill or incapacitated. A Power of Attorney permits the holder to pay the grantor’s bills and handle the grantor’s affairs when the grantor is unable to do the same.

       A Power of Attorney is an appointment of another person as one’s agent. A Power of Attorney creates a principal-agent relationship. The grantor of the Power of Attorney is the principal. The person to whom the Power of Attorney is given is the agent. We give the title “attorney-in-fact” to the agent who is given Power of Attorney.

       Without a proper legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse’s signature. If a valid power of attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid.

       Without a Power of Attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.

       According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, a guardian is a person appointed by a court to make financial and personal decisions for a person proven to be legally incompetent. p11

1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a ward. Disability Law at p11

       Legislation changed the designation of mental incompetent to incapacitated person in all laws, rules, regulations and documents.

2. What rights does an incompetent lose? Unless a Court orders otherwise, a ward/incompetent does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent also loses the right to marry.

3. How does somebody become the guardian of another? Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent or are parents of an unmarried incompetent can choose who will become the guardian after the guardians die and include a clause designating their successor in their wills. Disability Laws p12. Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court.  With a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent plus reasons why the incompetent is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Affidavit must be signed within 30 days of the examination. The Court will appoint a temporary attorney to interview the incompetent and prepare a report to the Court.

4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent who will act to protect the incompetent’s best interests can be guardian. When a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or a volunteer Attorney to serve as guardian.

5. What are the rights of the proposed incapacitated/incompetent person prior to hearing? The proposed incompetent is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.

6. What happens if the incompetent regains the ability to manage his or her affairs? The incompetent can then go back to Court and ask to be made his or her own guardian again, but must show that he or she has regained sound reason.

7. When is a guardian not needed? Just because a person has a disability, does not mean that they need a guardian. A guardian is not needed if a person can make, and understand the nature of decisions, and communicate decisions to others. A guardian is not required for someone who has a physical disability, but can manage his or her affairs, and is not needed if a person merely has a problem managing money or property. Disability Law p12.