Paul Norris, a colleague of mine here at Stark & Stark, and I authored the following blog. Together, we wanted to make those who are currently caring for an aging loved one aware of the various options available to them as alternatives to the more traditional Power of Attorney.
It is an issue that most of us will be confronted with at some point in the future; how best to care for an aging loved one. People commonly think a Power of Attorney is the only method by which to manage another person’s affairs who may no longer be competent to do so. There are other forms of protective arrangements, however, under New Jersey Law which provides a person who is to serve in a fiduciary role with substantial latitude to provide care for their loved one. These arrangements differ in nature as to the scope of the supervisory role.
The two most common forms of protective arrangements under New Jersey Law are Guardianships and Conservatorships.
Guardianships are Court supervised arrangements that provide surrogate decision making for minors or persons who are incapacitated – that is, unable to manage their property and affairs effectively. The arrangement is typically commenced by a third-party application to the Court, and once the Court adjudicates a person to be incapacitated, it obtains jurisdiction over an incapacitated person. N.J.S. 3B:12-1 seq.; New Jersey Court rule 4:86-1 through 10.
A Plenary or General Guardianship grants to the appointed Guardian full substituted decision making authority over all aspects of an incapacitated person’s life, including matters such as medical decisions, handling legal affairs, managing property and finances, making vocational choices, determining residence and social associations, voting, maintaining a driver’s license, seeking employment, and entering into marriage. Because the authority of a General Guardian is sweeping, there is a preference in New Jersey to employ limited Guardianship where possible, so that an incapacitated person can retain legal authority to make decisions over as many subject areas as possible, and safe to do so. Even a General Guardian is expected to consider and take into account expressed preferences of the incapacitated person. Guardianships are frequently used with respect to persons who are developmentally disabled (once they attain the age of eighteen), those who are cognitively impaired, and for elderly persons with diminishing capacity. Guardianships are also put in place where minors (under the age of eighteen) have monies or property to be managed, but, given their age, lack the legal authority to do so.
An alternate protective arrangement is the conservatorship, which is a voluntary arrangement employed by a competent person (the Conservatee) to grant authority to a third-party (the Conservator) to manage his or her property. New Jersey Court Rule 4:86-11. Conservatorships are voluntary proceedings where the Conservatee is legally competent, and the legal arrangement cannot be imposed by a Court over the objections of the Conservatee. If a Conservator is appointed through a Court proceeding, the Court oversees this arrangement and the Conservatee can at any time – providing that he or she is competent, revoke the Conservatorship. This type of arrangement, while as not as commonly employed as Guardianships, is often appropriate where the Conversatee has limited ability to manage his or her own financial affairs, or acknowledges a difficulty in doing so effectively. Individuals with cognitive impairments that interfere with their ability to properly handle financial matters, older persons unable to resist undue influence of family or third-parties over their financial affairs, and person suffering from mental illness, or other afflictions that place their financial stability at risk are appropriate candidates for Conservatorship.
Both Guardianships and Conservatorships can only be put in place by a Court, and continuing Court supervision follows the initial appointment. This can provide significant protection to a person who is vulnerable, lacks capacity, or suffers from cognitive limitations. Many people choose to avoid involving Courts in their personal affairs by executing in advance of any potential infirmity, Durable Powers of Attorney and Medical Advance Directives.
The decision to enter into protective arrangements should be carefully considered, as the arrangement might later be scrutinized by other individuals who feel that the arrangement is not in the best of the interests of the individual who is receiving assistance. As such, it is often suggested that you consult with an attorney to ensure that the process is fair, and moreover, ensure that the individual receives the best possible assistance.
If you have questions regarding guardianships or conservatorships and would like to discuss your specific case in more detail, please contact our office.