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East Hanover New Jersey Elder Law Blog

Families in New Jersey have options when it comes to guardianship

Sometimes, when a person in New Jersey can no longer handle their own affairs due to mental or physical incapacitation, it is necessary to have someone else manage their affairs for them. Guardianships may be an option, but they should be seen as a last resort, since once a guardianship is established, the incapacitated person loses their basic right to make decisions for themselves. Therefore, it is important for families in New Jersey to understand their options when it comes to guardianship.

One option that can be taken while a person is still able to make choices for themselves is to appoint someone who they trust to serve as Power of Attorney. The individual with POA is allowed to make decisions on that person's behalf if they become incapacitated.

Elder law: understanding your duties as successor trustee

When a person in New Jersey creates a trust, they often name a loved one as successor trustee. However, these successor trustees do not always know what to do in their role to formally become the trustee. They may simply ask their loved ones to sign checks so they can pay the bills, or they may take their loved one to the bank and ask to be placed as a signatory on the account. Doing these things informally, however, can lead to problems down the road.

Usually, a trust will have language in it that outlines how the successor trustee will step into their role as trustee. Oftentimes, a physician will first need to determine that the person who created the trust can no longer take care of their financial affairs due to incapacitation. After obtaining such a statement from the loved one's physician, this statement should be given to the bank, along with a written acceptance as trustee. This will formally make it so that the successor trustee can make financial decisions on the grantor's behalf. It also protects the grantor from their own inability to make sound decisions due to incapacitation.

Is it time to discuss powers of attorney with your parents?

Your parents may be vibrant, healthy people, but they may also be approaching senior citizen status. Because you can't know the future, it is never too early to consider initiating a conversation about the advantages of powers of attorney.


Few people are fortunate enough to go all the way through life without some sort of physical or mental issues, especially in their later years. Your attorney can assist in explaining how powers of attorney work, and your parents can choose from among several kinds, depending on their needs.

Seeking help when guardianship is the only option

When a person in New Jersey suffers from dementia, Alzheimer's or some other mental condition that renders them incapacitated, sometimes the only option is to assign a legal guardian over that person. This is not something that should be rushed into, however. It is only an option if the allegedly incapacitated person is mentally unable to designate a power of attorney, or if they had a power of attorney but revoked it.

The state of New Jersey recognizes two kinds of guardianship: one over the person and one over property. Guardianship of a person means handling the person's care and medical needs. Guardianship of the property means handling the person's financial affairs. Sometimes, one person is assigned to fulfill both of these roles, but, other times, two people will be assigned -- one over the person the other over the property.

What language should be included in a special needs trust?

Many people in East Hanover with special needs, such as a disability or a mental illness, rely on government benefits to make ends meet financially. However, these benefits are often needs-based. If an individual has too many assets in their name, they might not qualify for benefits. This is when it can be important to have a special needs trust.

A special needs trust can be drafted in a way that the beneficiary of the trust does not lose the necessary government benefits. This is because a trustee is established to manage the assets of the beneficiary. Because it is the trustee, not the beneficiary, who has complete control over the beneficiary's finances, these assets will not be counted when determining whether the beneficiary qualifies for government benefits. In this manner, the beneficiary may be able to receive government benefits while also having access to their funds, since the funds are the property of the trust.

Can in-home health care be made affordable?

Some people in East Hanover may think it is inevitable that, should they reach an age where they can no longer care for themselves, they will eventually go to a nursing home. However, they may be surprised to hear that most people who reach an age where they can no longer care for themselves remain at home and obtain the care they need through in-home health care. Therefore, it is important to plan financially for the potential need for long-term care.

The U.S. Department of Health and Human Services reports that over six million individuals in the nation have a "high need" for care that involves daily help with at least two basic life activities for a minimum of 90 days. Thus, they are in need of long-term care. However, most people do not need such care for very long. Of individuals who will reach age 65 or above, 52 percent will need long-term care. Of those, only 15 percent will need it for over five years.

Medicaid may not cover all costs

Many New Jersey residents have found that either themselves or a loved one has to enter an assisted living facility when they could no longer take care of themselves on their own. According to one source, over 700,000 disabled or elderly individuals in the United States are cared for in some type of residential care communities. And, as the baby boomer population continues to age, the number of people who need to live in assisted living facilities will only go up.

However, paying for such care is not always easy. Many people rely on Medicaid to pay for such care. Unfortunately, one study has found that some residential care facilities put a cap on how many residents can pay with Medicaid. Moreover, Medicaid might not cover everything.

What should you know about financial power of attorney?

When you set up a financial power of attorney, you appoint a trusted individual to make financial decisions on your behalf in the event of incapacitation. That being said, there is no “one size fits all” power of attorney plan. You can determine what issues your power of attorney can handle, and when their authority can kick in. What should you know about financial power of attorney?

 

What are some benefits of special needs trusts?

When a person in East Hanover has a disabled or mentally ill loved one, they may want to see that their loved one obtains the government benefits needed to make ends meet. This is particularly true if their loved one does not have the ability to work or even take care of their own finances. However, depending on the government benefits, a person can only have a certain amount of assets to qualify. In situations like this, setting up a special needs trust may be appropriate.

Special needs trusts address the specific financial needs of the disabled beneficiary, while at the same time, ensuring that the beneficiary of the trust retains his or her government benefits. A loved one or even a third party can serve, as trustee for a special needs trust.

What types of guardianship of the person are there in New Jersey?

Sometimes a child in New Jersey is born with a developmental disability that will make it impossible for them to ever care for themselves independently. The parents of these children love their child, but it is likely that their child will outlive them. That being said, even disabled individuals, at age 18, have reached the age of legal majority, in which their parents cannot make legal decisions for them. In these cases, however, parents may choose to name a person or agency as a guardian of the child, to make decisions on the child's behalf.

In New Jersey there are two types of guardianship of the person. The first is general guardianship. This is also known as "plenary" guardianship. Many people have determined that this type of guardianship is a sound option if the adult child is completely unable to express any opinion or make any decision.

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