Why are Guardianships Necessary for Some Adults?
When an adult, due to illness, advanced old age or developmental disability is not able to take care of himself — a substitute decision maker is needed to manage the person’s legal, financial and medical affairs. If the individual does not have a valid general durable power of attorney and an advanced directive for health care designating a health care proxy, a court appointed guardian will likely be needed. If it becomes necessary for a concerned friend or relative to seek guardianship they should consult with a guardianship attorney. When there is no close person in a position to assume guardianship, the court may appoint a guardian.
What is a Guardianship?
Guardianship is a legal arrangement established by the Court in which the person who needs protection (designated as the ward) is legally placed under the supervision of a guardian. Depending on the need the court can designate a guardian of the person and a guardian of the property. The guardian of the person is charged with making medical and personal decisions for the ward. The guardian of the property is charged with making legal and financial decisions for the ward. The court may appoint one person to serve in both capacities. Additionally, depending on the individual’s capacity the court may designate the guardianship as a general guardianship or limited guardianship. The latter type specifies in which areas the guardian has decision-making power.
How is Guardianship Established?
The request for the appointment of a guardianship is initiated by filing a complaint with the court. Establishing a guardianship is always a serious process, undertaken as a last resort since the court must find that the person (the ward) is incapacitated and such finding takes away the ward’s independence. Because of the significance of the hearing, it is wise to be represented by a well-respected estate planning/elder law New Jersey attorney. In addition to other requirements, the court will require affidavits from two doctors attesting to the ward’s incompetence and will appoint an attorney to interview the prospective ward and report his or her findings to the court before a judicial decision is made.
The Role of the Guardian
If you have been appointed as the guardian of both the person and property of the ward you are responsible for managing the wards legal, financial and medical decisions. You are a fiduciary and must act in the best interest of the ward. Practically speaking what does that mean, if you are dealing with an incapacitated adult who is aggressive and uncooperative, you know how unbearably stressful it can be. Friends and relatives in such positions can become paralyzed by circumstances, unable to properly provide for the incapacitated person’s nourishment, cleanliness, or medical care. While the incapacitated individual is not likely to suddenly become more cooperative, at least the guardian will then have legal authority to manage the incapacitated person’s financial and healthcare decisions. As guardian, depending on the particular situation, he or she may be able to:
- Hire a private home healthcare professional who both has experience handling such situations and gives the loving friend or relative a bit of respite
- Apply for government benefits, such as Medicaid, to provide nursing care at home or in a nursing facility
- Prevent the loved one from spending money recklessly on scams and sweepstakes or signing risky contracts or marrying a gold digger
- Decide where the loved will live, making sure the accommodations are safe
- Make medical and/or end-of-life decisions for the loved one
It should be remembered that the guardianship does not give the guardian free rein. The law holds the guardian responsible for acting in the best interest of the ward. It also requires that to the extent possible the guardian discuss matters with the ward and consider their input and preferences. The guardian is required to file reports with the court on an annual basis, unless otherwise provided in court order.
Proper estate or elder law planning before an incapacitating event such as a major stroke or dementia would avoid, in most circumstances, the need for guardianship. When a guardianship is required it is wise to be represented by a well-respected New Jersey elder law attorney. Contact an attorney today.
Posted in: Elder Law