It can be distressing to see an aging loved one become mentally unable to make decisions on their own behalf. A person may have a mental disorder like dementia or may be physically incapacitated, such as a person in a coma may be, that makes them unable to handle their affairs. People in New Jersey who have a loved one in such a situation may be concerned about who will make care and financial decisions on behalf of their incapacitated loved one.
If their loved one had given thought to estate planning before they became incapacitated, they may have executed a power of attorney granting an agent decision-making powers upon incapacitation. However, not everyone has an estate plan, and sometimes this means the court must appoint a guardian over the incapacitated person. It is important, then, to recognize the difference between guardianship and power of attorney.
A guardianship is viewed as a last resort option, as it strips a person of their decision-making authority. In New Jersey, it takes three attorneys to establish guardianship over the incapacitated person. This could lead to significant costs, both in time and money. However, it is possible to seek a limited guardianship if a person still has the ability to make decisions, but needs someone’s oversight and help with financial affairs.
A power of attorney in New Jersey must include asset preservation planning and gifting. Unlike guardianship which is seen as a replacement, the agent specified in the document is more like an assistant to the person. Unlike guardianship, a person can choose who they’d like to have serve as their agent through a power of attorney.
At the law firm of McHugh & Macri, we understand how important it is for a person to execute a power of attorney. We can ensure that a person’s power of attorney has the crucial language needed to allow the agent to protect a person’s assets. We also understand that not everyone has a power of attorney, and that sometimes establishing a court-appointed guardian is necessary. We assist our clients throughout the guardianship process, whether they are seeking guardianship of the person, guardianship of the property or a limited guardianship. Facing the prospect of having to seek a court-appointed guardian or establish power of attorney can be overwhelming. Our firm aims to ease these processes in a way that meets our client’s best interests.