C. AFTER THE JUDGEMENT OF INCAPACITY AND APPOINTMENT OF GUARDIAN
Congratulations! You’ve been appointed as Guardian of your loved one. Just when you thought your involvement with the Court is over, now the Court oversight begins. Being appointed as Guardian imposes significant responsibility and record-keeping. Further, once the Court appoints you as Guardian of your loved one, you do not have unfettered rights to your loved one’s assets, income and health care decisions. If the Guardian wishes to sell any of the incompetent person’s property, the Guardian must make an application to the Court to do so. Similarly, Court approval is necessary if the Guardian seeks to gift assets for the purpose of estate or Medicaid planning. (NJSA 3B:12-49, 3B:12-58 and 3B:12-59).
- Filing of Reports
A Guardian may receive monetary compensation for his or her work as Guardian. The commission amounts are set forth in NJSA 3B:18-24 and 3B:18-25. Presuming the incompetent person has assets and income, the Guardian is entitled to the following commissions on an annual basis without prior court approval:
- Six percent (6%) on the income received on behalf of the incompetent person, and
- $5.00 for each $1,000.00 of principal corpus for the first $400,000.00, and $3.00 for each $1,000.00 of principal corpus on amounts exceeding $400,000.00.
The Guardian may also receive a termination/distribution commission. The amount of the termination/distribution commission is based, in part, not only upon the value of the assets, but also upon the length of time the Guardian has acted as Guardian when the termination or distribution occurs. These termination commission amounts are set forth in NJSA 3B:18-28.
Being appointed a Guardian for your loved one imposes certain record-keeping and report filing requirements. Once you are appointed Guardian, the court involvement in your loved one’s estate does not end. While the Guardianship application process is concluded, the Court oversight begins. This Court oversight continues until the Guardianship is terminated.
The best way to reduce the expenses associated with a Guardianship is to discuss and finalize your estate plans, long term care plans and Power of Attorney preferences with a knowledgeable attorney while you are still mentally competent and can make those decisions on your own. As our society ages and as the law continues to recognize the independent legal rights of “children” once they reach eighteen (18) years of age, the need for Powers of Attorney and Guardianships is becoming increasingly important. Having a Power of Attorney or estate plan is no longer limited to the rich and famous or elderly; even college-aged children should consider having Powers of Attorney in place. If there are questions regarding your or a loved one’s mental competency to sign a Power of Attorney, ask your family physician or neurologist to perform a competency exam such as the mini mental status exam.
If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost. An alternative to the Power of Attorney is a Guardianship for your loved one. A Guardianship requires an action in court and physician/psychologist certifications. Navigating the maze of Guardianship applications on your own can be both confusing and overwhelming. Because the Guardianship process requires a Complaint being filed with the Court, a copy of the Complaint will be provided to your loved one over whom you seek Guardianship. This may cause tension and misunderstandings between you and your loved one if you make the application on your own. Having an attorney to prepare the Guardianship application and to guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings.
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 Pamela M. Snyder, Esq. or one of our other attorneys at the law firm of Bathgate, Wegener & Wolf, P.C. to discuss your and your loved one’s legal options.
Pamela M. Snyder, a partner with the law firm of Bathgate, Wegener & Wolf, P.C. located in Ocean County, New Jersey, focuses a portion of her practice on estate planning, guardianships, Powers of Attorney, Wills, Special Needs Trusts and probate litigation in Ocean and Monmouth Counties.