Category: Guardianship

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Guardianship vs Conservatorship vs Power of Attorney

Do you want to clarify the differences between guardianship, conservatorship and  power of attorney? There are key differences after all, and you need the assistance of a knowledgeable and compassionate lawyer to make the right choice. Do you need to establish legal guardianship in NJ for minor children, someone elderly, or a person that is long-term disabled? At SCC Legal, we have dealt with all kinds of guardianship and conservatorship issues on behalf of families and caregivers. In this article, we discuss conservatorship, guardianship, and durable power of attorney and highlight their distinct features and differences.  

What is Conservatorship? 

What is conservatorship in New Jersey? The courts appoint a person to act as a conservator for an adult who does not require the protection of legal guardianship, but does need assistance to manage their affairs. It is a voluntary process where the protected person (conservatee) agrees to the conservatorship, or the courts will reject the application. A conservator’s authority is limited and includes filing income tax returns, paying debts, and entering into contracts on the protected person’s behalf. 

What is Guardianship?

Guardianship is also known as legal guardianship and gives a person or agency legal authorization to act on behalf of a minor or incapacitated adult to protect their rights and ensure their health, safety, and welfare needs are met. New Jersey allows two types of guardianship: general and limited. General guardianship protects people found to be incapable of expressing or making decisions, while limited guardianship covers decision-making around financial, legal, medical, vocational, educational, and residential matters. SCC Legal has the expertise required when you want to obtain legal guardianship of an elderly or disabled person.

What is a Durable Power of Attorney?  

Power of Attorney’s (POAs) are not durable by default in New Jersey. The law requires a specifically worded statement produced by an experienced NJ estate planning attorney. What is a durable power of attorney? It is POAs that retain their effectiveness even after the person becomes ill or incapacitated. Estate plans generally include a financial POA and a medical POA. A financial POA protects your interests and assets when you cannot manage your financial affairs, while a medical POA allows someone to make medical decisions on your behalf.   

What are the Differences Between a Power of Attorney and a Guardianship/Conservatorship?  

One of the main differences between a power of attorney and guardianship is that the POA is generally part of a person’s estate planning process while they are deemed sound of mind. You are proactively choosing who will be managing your affairs if you become incapacitated and clearly state your preferences. Guardianship and conservatorship applications, on the other hand, are made by someone else when they feel you cannot make sound decisions due to mental or physical incapacity. Do you want to minimize the potential for conflict between your loved ones? Work with the SCC Legal team to create a comprehensive estate plan. 

For more information on estate planning, elder and guardianship law in NJ, please contact our team at SCC Legal today or visit us at: https://www.scclegal.com/

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A Family Guide to Legal Guardianship in New Jersey

The decision to request legal guardianship in New Jersey is never taken lightly. It is complicated and can be costly as you are required to pay for assessments rendered by a competent, court-recognized psychologist and physician, amongst other expenses. The process is also governed by comprehensive statutes, case law, and court rules specifically written to protect minor children, long-term disabled adults, and the elderly. SCC Legal has extensive experience dealing with a range of minor children and adult guardianship issues on behalf of caregivers and families. 

We discuss legal guardianship, the accompanying responsibilities, how to become a legal guardian and share why it’s vital to include various power of attorneys (POAs) in your estate planning. 

Understanding Legal Guardianship  

Legal guardianship means a person or agency is legally authorized to act on behalf of an incapacitated adult or minor to ensure their health, safety, and welfare needs are met and their rights protected. A person cannot be declared incapacitated because they make irresponsible decisions. There must be proof that their actions are causing financial loss, and could lead to life-threatening injuries or death. 

The process of obtaining legal guardianship is complex and a lawyer from SCC Legal can guide you through the process.

What Are the Responsibilities of a Guardian  

The state of New Jersey allows for General Guardianship and Limited Guardianship. Both come with distinct guardianship responsibilities guided by the capacity of the person for whom you are appointed as a guardian and generally relate to the person’s medical, legal, financial, residential, educational and vocational matters. A guardian must maintain sufficient contact with the protected person to understand their limitations and capabilities. Under general guardianship, you make all the decisions on a person’s behalf, while limited guardianship requires consultation with the individual as far as their abilities allow them to make informed choices.    

How to Become a Legal Guardian in New Jersey  

Are you wondering how to become a legal guardian for an older adult? The New Jersey Bureau of Guardianship Services manages all legal guardianship issues in the state. Applying for guardianship requires a court proceeding, and you first need to obtain reports from two doctors, a medical doctor and a psychologist, who examined the person you feel is incapacitated. Several further steps are required, with legal timelines, before you appear in court. The laws are comprehensive, and although you can apply directly, it’s best to appoint an attorney to guide you through the guardianship process. 

Guardianship vs. Power of Attorney in NJ 

When you look at guardianship vs power of attorney, it is always better to ensure you and your loved ones have a durable financial power of attorney (POA) and a durable medical POA included in your estate planning documentation, which SCC Legal can help with. It should be done while you are clearly capable of making sound decisions for yourself. If these documents are unavailable, and it is determined that the individual lost their decision-making capacity, a family member must go through the extensive guardianship application process.   

For more information on elder and estate planning law, or if you want assistance with legal guardianship in New Jersey, please contact our team at SCC Legal today or visit us at: https://www.scclegal.com/

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Responsibilities Of Plenary Guardianship

Plenary Guardianship

Sometimes adults lose the ability to make decisions for themselves due to mental incapacitation from a disease, injury, or illness. When a person’s mental state declines to the point that they aren’t able to understand the choices they’re making, someone needs to step in and assist with financial, legal, and medical decisions. This is called a plenary guardianship – when someone has total control over another person’s decisions. 

 

A plenary guardianship comes with many responsibilities. Let’s take a look at some of the most common elements of a plenary guardianship. 

Complete Authority

If complete authority is granted in a plenary guardianship, it means that an individual has the power to make all decisions on behalf of the incapacitated person. These decisions are most often medical, financial, and legal. If you’re drafting your will you can choose who you want to be named as your guardian if a situation arises in which you need one. It’s usually a spouse, an adult child, or a trusted family friend. 

Authority Over Estate

Your plenary guardian will have complete control over your estate and all of your assets. If the doctors tell your plenary guardian that it’s unlikely you’ll recover, they can start distributing the estate as directed by your will. 

Manages Health 

Health decisions are an important part of a plenary guardianship, and you should plan for how you want these decisions made as part of your will. If you don’t, and your guardian doesn’t have any indication as to how you would have wanted to proceed, they’ll make the decisions about your healthcare themselves. 

Manages Wealth

Even when your incapacitated, the bills still need to be paid. In a plenary guardianship, your guardian is responsible for your finances, including personal accounts and any businesses you own. It’s essential to appoint someone you trust to be your guardian, especially if you’re an entrepreneur or you own a business, because this person will be in charge of critical financial decisions. 

For more information about plenary guardianship, or if you have any elder law questions, please contact our team at SCC Legal today or visit our website at: https://www.scclegal.com/

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Guardianship abuse: what it entails and how to avoid it

Guardianship abuse is a type of elder abuse that occurs when a person who has been appointed as a guardian abuses their power. Unfortunately, guardianship abuse is much more common than you might think.

However, there are steps you can take to protect yourself, your family and your assets. Guardianship is an essential part of a comprehensive estate plan, and if you haven’t spoken with an elder lawyer yet, we recommend you do so soon.

Continue reading “Guardianship abuse: what it entails and how to avoid it”

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How to choose the best legal guardian for your children

As a parent, the care and wellbeing of your child or children is a priority and, as unpleasant as it is to think about, this extends to their care in the event of your or their other parent’s death. This means that naming a good legal guardian is essential, says New Jersey estate planning attorney Frank Campisano – but what exactly does this mean?

Firstly, if you don’t name a legal guardian in your Last Will and Testament, the courts of the State of New Jersey will appoint custody to someone of their choosing. There is no guarantee at all that your child will go to a family member or loved one of your preference, so it’s vitally important that this decision is kept in your hands rather than in those of the court’s.

Secondly, the surviving parent has a right to custody of children if the other parent dies, something that is not always a desirable situation. With the right legal advice, you will be able to plan ahead and nominate the best possible guardian for your child.

Here is some more information on choosing a legal guardian:

  • Legal guardianship applies to children under the age of 18 years old and your chosen guardian must be properly named in your Will in order to claim custody.
  • It’s best if you and the other parent name the same guardian in both your Wills in order to avoid legal complications.
  • Ensure that you also name a back-up guardian in the event that your first choice is unable to take on the responsibility.
  • Remember to specify each individual child under 18 by name in your Will when assigning guardianship, or the court is free to choose guardians for any unnamed children.
  • Specify if you would like your children to live together.
  • You can name co-guardians in your Will, for example, by giving guardianship to a couple rather than an individual.
  • If you are able, it’s a good idea to include financial planning in your Will to assist your children’s guardian in the event that they take on custody of your child.
  • Remember to involve your chosen guardian or guardians in this process. They should be fully informed of your decision and happy to take on this important role.

Straightforward, affordable estate planning with NJ attorneys 

Frank Campisano has over 30 years of experience in New Jersey estate planning law. We can assist you in creating a Last Will and Testament, Power of Attorney and medical directives as well as set up trusts appropriate to your specific needs. Contact Frank today, for expert estate planning advice.

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Your elder law guide to guardianship over a senior loved one

As our loved ones grow older, they may become incapable of managing their personal and business affairs. This can leave them vulnerable to scams, ill-advised decisions and the loss of assets. Luckily you can protect your senior loved one through legal guardianship. With legal guardianship a trusted individual is appointed to make personal, financial and medical decisions on behalf of your loved one. Here, elder law attorneys in New Jersey answer frequently asked questions about guardianship.

Is legal guardianship necessary? 

This legal appointment is important for several reasons, most importantly to help a senior loved one to maintain a good quality of life. Financial decisions such as managing investments and paying for home care or nursing are essential, as are decisions about the kind of medical care he or he needs to receive.

Unfortunately, even if your loved one has a spouse who is competent to make these decisions, they cannot legally do so without court ordered guardianship, a Living Will or a Power of Attorney which specifically grants this power to them. This makes this process absolutely essential in cases where a Power of Attorney is not contained in the estate planning documents.

Who should be appointed guardian? 

A guardian should be trustworthy and have your loved one’s interests first in mind above all else. This is because handing over financial, personal and medical control to another person makes your loved one incredibly vulnerable. In New Jersey, the state gives first preference to the spouse of the individual and, if he or she is unable or refuses, then on to an adult child.

How does the guardianship process work? 

This is a complex legal proceeding which generally comprises of the following steps:

  • Filing a complaint in the Superior Court in the county in which the incapacitated individual lives. This must include two separate medical affidavits from physicians who have examined the individual.
  • Filing an assessment of the incapacitated individual’s assets.
  • Attending a court hearing where a judge will oversee the petition to file for guardianship. Here, you will be represented by an attorney who will also have to interview the incapacitated individual and file a report indicating that guardianship is necessary.
  • If guardianship is granted, he or she will have to execute qualification forms and receive letters of guardianship. The guardian may also have to be granted a bond to help ensure against mismanagement of the incapacitated individuals affairs and finances.

Get support and expert knowledge from experienced elder law attorneys

At Sedita, Campisano & Campisano, LLC, we offer compassionate legal support for families and individuals seeking guardianship of a loved one. By working with you each step of the way and representing you and your loved one’s legal rights, we will help deliver a solution which allows you to properly care for your elderly family member. For more information on guardianship, veteran’s benefits, medical directives or other elder law concerns, please contact us today.

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What is Legal Guardianship?

by Frank Campisano

Why Do I Need To Establish Legal Guardianship?

Have you given much thought to the welfare of your children should you pass away? Are you taking care of elderly or long term disabled individuals? What will happen to them? Who will look after them? Many people don’t give this enough thought and fail to plan, but you can turn that around. Legal guardianship arrangements are legally binding and by ensuring you have planned for your children’s or dependents lives after your death. This is especially important for children, by doing this properly you can safeguard them from becoming a part of the government adoption/foster care system, a place you really don’t want them to end up.

In the state of New Jersey, the court allows for a parent of a minor to designate or propose legal guardianship of minors in the event of their death (death of both parents) as long as the court approves.

What does legal guardianship mean?

If someone has legal guardianship of your children when you die, it means they will be responsible for their well-being and financial interests. Plainly put, they will become your child’s parents in many respects of the term and have the authority to make decisions which will affect the minor’s life (which will hopefully be in their best interests).

The best way to safeguard your children from becoming part of the government system is to ensure you establish legally binding guardianship for all dependents. Hand in hand with this is having estate planning and a will set in place as early in your life as is possible. This will ensure your property and children will be properly taken care of in the event of anything untoward happening to you.

By having a legal guardianship established, and a last will and testament in place, you can avoid having a court appointed executor or administrator tending to your estate (and your children) as they see fit.

How does an Elder Lawyer Help Setup a Legal Guardianship?

At a minimum, a good elder lawyer will help you draw up the legal documents that establish an ironclad plan for the care of your minor children or other dependents when you die. A really good elder lawyer will help you work through your personal concerns as a trusted adviser and expert so that you are sure all options for care have been considered when designating a legal guardian. This is probably even more important than the legal paperwork, and is something we pride ourselves on, no matter how long it takes to figure out.

Frank Campisano and the team at SCC Legal have established legal guardianships for concerned families and individuals in every possible situation. Don’t leave this all important situation to the winds of chance. Call us today.

Posted on

Why Do I Need To Establish Legal Guardianship?

Have you given much thought to the welfare of your children should you pass away? Are you taking care of elderly or long term disabled individuals? What will happen to them? Who will look after them? Many people don’t give this enough thought and fail to plan, but you can turn that around. Legal guardianship arrangements are legally binding and by ensuring you have planned for your children’s or dependents lives after your death. This is especially important for children, by doing this properly you can safeguard them from becoming a part of the government adoption/foster care system, a place you really don’t want them to end up.

In the state of New Jersey, the court allows for a parent of a minor to designate or propose legal guardianship of minors in the event of their death (death of both parents) as long as the court approves.

What does legal guardianship mean?

If someone has legal guardianship of your children when you die, it means they will be responsible for their well-being and financial interests. Plainly put, they will become your child’s parents in many respects of the term and have the authority to make decisions which will affect the minor’s life (which will hopefully be in their best interests).

The best way to safeguard your children from becoming part of the government system is to ensure you establish legally binding guardianship for all dependents. Hand in hand with this is having estate planning and a will set in place as early in your life as is possible. This will ensure your property and children will be properly taken care of in the event of anything untoward happening to you.

By having a legal guardianship established, and a last will and testament in place, you can avoid having a court appointed executor or administrator tending to your estate (and your children) as they see fit.

How does an Elder Lawyer Help Setup a Legal Guardianship?

At a minimum, a good elder lawyer will help you draw up the legal documents that establish an ironclad plan for the care of your minor children or other dependents when you die. A really good elder lawyer will help you work through your personal concerns as a trusted adviser and expert so that you are sure all options for care have been considered when designating a legal guardian. This is probably even more important than the legal paperwork, and is something we pride ourselves on, no matter how long it takes to figure out.

Frank Campisano and the team at SCC Legal have established legal guardianships for concerned families and individuals in every possible situation. Don’t leave this all important situation to the winds of chance.  Call us today.

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