In the past ten (10) years, the number of Guardians appointed in the State of New Jersey has increased significantly. According to data compiled by the New Jersey Courts, Guardianship appointments increased from less than 2,000 per year between 2006 and 2008 to 2,600 in the year 2014 and that number continues to rise. As the elderly population grows and as people become more aware of the necessity to have estate plans and other protections in place for their special needs child, it is anticipated that the number of Guardians appointed will continue to rise. To begin our discussion of Guardianship, let’s first define “Guardianship” and then present a few common scenarios which people may encounter with their loved ones that may signal the need for a Guardianship.
B. WHAT IS GUARDIANSHIP?
Guardianship is a legal process appointing a ‘competent adult’ (Guardian) to be responsible for the care, custody and control for a ‘vulnerable or incapacitated person’ often referred to as a (ward).
SCENARIO NO. 1:
You notice that your elderly loved one’s memory is beginning to fail. Your loved one has always been very independent and insists on handling everything on her own. Unfortunately, your loved one has forgotten to pay a bill or two. So, when you make your weekly visit, you look over your loved one’s checkbook and help your loved one reconcile her bills. Gradually you become more involved in your loved one’s finances and start to sign her name to checks. You only sign her name to checks with her approval and you never sign checks made out to you or your family. Is this legal?
ANSWER: No. As good as your intentions may be, it is never appropriate to sign your loved one’s name. Instead, you should sign your name as your loved one’s Agent under a Power of Attorney or as a Court Appointed Guardian or Conservator for your loved one.
SCENARIO NO. 2:
Your autistic child is developmentally delayed and just celebrated his 18th birthday. Because your child is developmentally disabled, as his parent, do you have an automatic right to handle his finances, access his medical records and make health decisions on his behalf?
ANSWER: No. Once a child turns 18 years old, parents no longer have a legal right to access their child’s medical records or to make health care decisions for the child. This is true even if the child is mentally disabled and lacks the cognitive ability to make such decisions. In these circumstances, the parents should apply for a Guardianship of their disabled child once that child reaches 18
SCENARIO NO. 3:
Your mother was diagnosed with Alzheimer’s dementia last year. At first it wasn’t too bad, but now your Mom confuses the identity of her son, sometimes mistaking him for her husband who passed away two (2) years ago. Mom also frets that she doesn’t have enough money to pay her monthly Homeowners Association dues or to last her in case she gets sick. In fact, she has over $1 million in the bank. You find a Power of Attorney on the internet, print it out and have your mother sign it naming you as her Agent under the Power of Attorney. When signing the Power of Attorney, Mom says that she doesn’t understand all of that legal jargon but as long as it will help protect her money, she’ll sign it. You witness the signature and have one of your friends notarize the document. Is the Power of Attorney valid?
: No. While the Power of Attorney document meets the requirements of NJSA 46:2B-8.9 and NJSA 46:14-2.1 that it be signed by the person granting the authority, bear at least one witness signature and is notarized, for a Power of Attorney to be valid, both of the following conditions must also be met:
- The person signing the Power of Attorney must be at least 18 years of age, and
- The person must have mental competency sufficient to enter into a contract, meaning that the person must understand the nature, extent, character and effect of the act which the person is performing.
It is questionable whether condition 2 (having sufficient mental capacity to enter into a contract) is met. Therefore, in this scenario, you should first consult with a physician who can provide a mini mental status exam or other examination to determine Mom’s mental capacity. Depending on the results, Mom may enter into a Power of Attorney, or a Guardianship may be required. Because of the potential complexity of this scenario, it is recommended that you consult with an attorney familiar with elder care law and estate planning.
SCENARIO NO. 4:
You believe that your college-aged child is not being forthright with you regarding her health. You contact her doctor to speak with her regarding your daughter. When you call the office, the office staff is “rude” and refuses to discuss your daughter’s health saying that the HIPAA laws do not allow it. You insist that, as her parent and as the person who is paying for the health insurance, you have a right to know about your child’s health. The medical office still refuses you access to your daughter’s medical records and refuses to allow you to speak with the doctor. Do you have a legal right to see your daughter’s medical records?
ANSWER: No. As in Scenario No. 2, even though you are the parent and even if you are the one paying for the health insurance, once a child reaches eighteen (18) years of age, a parent is no longer automatically permitted to access the child’s medical records or make health decisions on behalf of his or her son or daughter. If the child is of legal age (currently 18) and is mentally competent, then the child may sign a General Power of Attorney and/or a Healthcare Power of Attorney that grants the parent permission to access the child’s finances and/or medical records under certain circumstances. If the child is of legal age, but is mentally incompetent, then a Guardian will need to be appointed.
C. WHAT CAN YOU DO IF YOUR LOVED ONE NEVER EXECUTED A POWER OF ATTORNEY AND NOW DOES NOT HAVE THE MENTAL CAPACITY TO SIGN A POWER OF ATTORNEY?ANSWER: APPLY FOR A GUARDIANSHIP
If your loved one does not have the mental capacity to sign a Power of Attorney, then you should consider making an application to the Superior Court of New Jersey, Chancery Division, Probate Part to be appointed Guardian of your loved one. While the thought of getting a court involved in your family’s affairs can be overwhelming and daunting, Pamela M. Snyder, Esq. and the attorneys at the Bathgate, Wegener & Wolf, P.C. are available to discuss a Guardianship action and provide their assistance during the application process.
- Mental Incompetency
A Guardianship for an adult will only be appointed if the Court declares your loved one mentally incapacitated. Therefore, if there is any question regarding your loved one’s mental capacity, before you begin to expend thousands of dollars for a Guardianship, you may want to ask his or her regular family physician or neurologist to perform a mini mental status exam. If your loved one scores well on this exam, then an application for Guardianship may be denied and your loved one may have the mental capacity necessary to sign Power of Attorney and other estate planning documents. By first obtaining an informal exam of your loved one, you could ultimately save thousands of dollars that could be used towards your loved one’s comfort and health care.
If there is no doubt that your loved one’s mental capacity is significantly diminished, or if your loved one does not perform well on the mini mental status exam, then before applying to be Guardian of your loved one, you should have your loved one examined by a physician familiar with mental competency exams and a licensed psychiatrist or psychologist. (New Jersey Court Rule 4:86-2(b)). The physician and psychiatrist or psychologist must each author a report. That report must contain the medical professional’s expert opinion regarding whether your loved one is mentally incompetent, whether he or she can govern and handle his or her financial affairs and whether he or she can make decisions regarding her health, medical treatment and issues regarding well-being. When choosing a physician, psychiatrist or psychologist, it is important to select one familiar with the requirements for Guardianship application. There will likely be a fee for the examination and report that will not be covered by Medicaid, Medicare or private health insurance. These fees can be as high as $1,200.00 or more for each medical professional.
- Verified Complaint to Have Your Loved One Declared Mentally Incompetent and to Have a Guardian appointed.
Within thirty (30) days of the medical and competency exam, you must make the application to the Court to be appointed Guardian of your loved one. (New Jersey Court Rule 4:86-2(b)). The application must be in the form of an Order to Show Cause and a Verified Complaint. The current filing fee for the Order to Show Cause and Verified Complaint is $200.00. This fee is usually paid to the Surrogate of the County in which the alleged incompetent person resides, not the Superior Court of New Jersey. If the alleged mentally incompetent person cannot be examined before you submit your application to the Court, the Guardianship applicant may request permission from the Court to force an examination of the alleged mentally incompetent and/or grant an extension of time to submit the report.
When preparing an application to be appointed Guardian of your loved one, the application can seek (a) plenary or Guardianship, (i.e., full or complete uardianship of your loved one), (b) Guardianship of the person only or (c) Guardianship of property only. Subject to restrictions imposed by the court, a plenary guardianship would allow the person appointed as Guardian full access to your loved ones health records and finances, and would allow the Guardian to make financial decisions, health care decisions and other decisions regarding for the well-being of the loved one. This could include authority to do both Medicaid and/or estate planning for the incompetent person. Guardianship of the person limits the Guardian’s authority to those decisions regarding the Guardian’s health and well-being. Guardianship of the property limits the Guardian’s power to handling your loved one’s finances, income and assets.
If you are unsure which type of Guardianship is appropriate in your loved one’s particular situation, you should consult with an attorney experienced in the areas of Guardianship, estate planning, special needs law and/or elder care law.
- Factors the Court Will Consider.
When reviewing the Guardianship application, the judge will consider the following factors when making his or her decisions (a) whether to declare your loved one mentally incompetent such that your loved one cannot govern his or her financial affairs and cannot make health decisions on your behalf, and (b) who to name as Guardian or your loved one. Therefore, these items must be included in your submission to the Court:
- Name, address, birthdate/age of alleged mentally incompetent person,
- Living situation of alleged mentally incompetent person,
- Known Assets of alleged mentally incompetent person,
- Known income of alleged mentally incompetent person,
- Name of person(s) seeking Guardianship and relationship of that person to the alleged mentally incompetent person,
- Name of person(s) having the same or superior degree of relationship to the alleged mentally incompetent person (this may or may not be the same as the names of the next of kin of the alleged mentally incompetent person),
- List of government services, i.e., Medicaid, Medicare, DDD benefits, Housing Assistance, Utility Assistance, etc. which the alleged mentally incompetent person is receiving,
- Health or mental issues which the alleged incompetent suffers,
- Historical examples showing why the alleged mentally incompetent person needs a guardian to handle his or her financial affairs and to make health care decisions on his or her behalf,
- Brief synopsis of reports by physician and psychiatrist or psychologist,
- Applicant’s willingness to serve as the Guardian.
If you or a loved one needs assistance managing financial affairs or you need to make medical decisions and access to health care records on behalf of your loved one, both a Power of Attorney and a Guardianship can accomplish that goal. A Power of Attorney can only be signed and be effective if the person granting the authority is eighteen (18) years of age or older, and has the mental capacity to enter into a contract. If you or your loved one lacks the necessary mental competency, then it will be necessary to submit an application to the Court to have a Guardian appointed to handle your or your loved one’s financial affairs and matters pertaining to your or your loved one’s health care and well being. In Part 2 of this three (3) Part series, we will look at what happens after the initial application for a Guardianship is submitted to the Court.If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a guardianship application made by someone for your loved one, contact the law firm of Bathgate, Wegener & Wolf, P.C. to discuss your and your loved one’s legal options at 732-363-0666