This estate planning tool can help to protect adults from guardianship

On Behalf of | Dec 14, 2023 | Elder Law |

Aging in place has become the ideal for many older adults in the Garden State. People modify their homes and make arrangements with family members or neighbors so that they can live in their own homes for as long as possible after they retire. However, such plans generally require that the older adult retain the physical and mental capability to live independently.

Sometimes, health issues or cognitive decline will render someone incapable of meeting their own needs and maintaining a home. Often, those with Alzheimer’s disease or other debilitating medical conditions require the support of another adult as they age. Family members or professional caregivers could ask the New Jersey courts for guardianship.

Guardianship creates a responsibility to care for someone unable to meet their own needs. Those who plan ahead of time for the possibility of incapacitation can often avoid guardianship and conservatorship regardless of what happens with their health.

People can name their own caregivers

Provided that someone thinks about the possibility of cognitive decline and other challenges before they arise, they can create estate planning documents that protect them. If someone worries that they might develop Alzheimer’s disease because of a family history or otherwise become dependent on other people as they age, they can plan for that situation.

New Jersey allows adults to create durable powers of attorney while they retain their testamentary capacity. A durable power of attorney is a document designating a specific individual to help act on behalf of a vulnerable older adult. Basic powers of attorney allow people to name medical or financial agents to act on their behalf.

However, those documents typically lose authority when someone becomes permanently incapacitated. Durable powers of attorney retain their legal authority regardless of what happens to someone’s physical health or mental abilities. They will remain in effect until someone dies.

Therefore, those who draft durable powers of attorney can control who manages their medical affairs and financial resources when they can no longer do so. People may separate financial and medical authority or name multiple people to serve as co-agents for their protection. They may also provide very specific instructions regarding what should happen with their resources or their health care to avoid abuses of that authority.

Although only a small percentage of people ever experience incapacitation or become incapable of speaking on their own behalf in court, it is still a concern worth addressing. Adding the right documents to an estate plan can help someone protect their rights and interests as they age.