Tips on designing a guardianship plan

What are the responsibilities of a Guardian of the person and property of an incapacitated individual? The Guardian is expected to fulfill a broad array of obligations, since the Guardian is responsible to arrange for and oversee the financial and personal well-being of the person under guardianship. Each individual is unique, with her or her own preferences, likes and dislikes, and cultural experiences. In some cases, the Guardian is very familiar with the individual. In other cases, it’s all new and some investigation may be required to learn about the unique attributes of the individual. And of course an individual’s interests and needs will typically change over time.

New Jersey’s guardianship statute on this subject can be found at N.J.S.A. 3B:12-57 and there are other statutes surrounding it in the Probate Code.  Among other things, the Guardian needs to arrange for “the care, comfort and maintenance and, whenever appropriate, the education and training of the ward;”  must “develop a plan of supportive services for the needs of the ward and a plan to obtain supportive services;” and must take all measures required to attain eligibility for programs and benefits, to pursue assets that are owed to the ward, and to apply the available sums in the ward’s benefit.

To develop a plan,  create a budget. The budget needs to include every single recurring cost in a typical month or quarter. Determine the recurring sources of income and apply for benefits that are available. It may be necessary to apply for Social Security Disability or retirement income, SSI, employer’s disability pension, or to file a claim for any available long-term care insurance.  Do an assessment of whether the individual can stay in their current residence or if a different residence — or health care facility — would be more appropriate. Is in-home care needed? This becomes part of the budget. Is nursing home care required? It’s important to investigate the availability of Medicaid benefits. Are their unpaid bills or unfiled taxes? Start to tackle all of that and bring things up to date.

For a ward in the community, start investigating the social supports that can add meaning to that person’s life. Does the person enjoy attending religious services? See what needs to be done to bring the person to weekly services and have a companion there for assistance.  Perhaps the person can be enrolled in recreational activity at the local “Y” or senior center. Map out a plan of activity for an in-home caregiver to do — this might include reading aloud, exercise, outdoor walking excursions, movies, particular types of menus or trips to beloved eateries.

By putting together a thoughtful plan of activity to help the individual stay engaged in his or her cultural and social life, a Guardian can support the sense of well-being, happiness and security of the person under guardianship. In this way, the Guardian  can fulfill his or her legal obligation to “give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. ”

Call us for legal advice in carrying out your responsibilities as a Guardian ….. 732-382-6070

A happy day in Guardianship Court: Restoration

Today I had the great fortune to participate in a case in which a person who has been under guardianship for six years had their capacity restored in full.  This kind of situation doesn’t often happen, but it’s really fabulous.

This case started in 2010 when the parent and sibling came to me in an emergency to report that their loved one who I’ll call “X” had suffered a burst aneurysm and a stroke, and was in a coma in the hospital. The hospital advised that they seek guardianship, as there was no power of attorney or health care proxy in place. We filed the necessary papers, and the parent was appointed Guardian. The “ward” — a former executive with huge responsibilities at a major New Jersey corporation —  required extensive hospitalization, but eventually arose from the coma and was released. “X” had a very slow improvement in high level intellectual ability. Also, “X” had various lower body physical handicaps including partial paralysis and required a lot of hands-on assistance.

The family was utterly devoted, and with each year, “X” got stronger and more of “X’s” intellectual processing returned. At one point, “X” asked us to go back to Court, as “X” wanted to revoke “X’s” prior Will and make a new plan. That was accomplished, with the help of the “ward’s” court-appointed attorney. The Guardian and family continued to assist the “ward” with challenging exercises and tasks to help “bring the brain back.”

Finally, the Guardian contacted me and basically said “we think that “X” is ready to regain control of all decisions about their life. “X” has physical handicaps, but “X” can handle those with amazing specialized equipment which “X” knows how to use, and “X” will ask for help when necessary.” So we filed the necessary Verified Complaint with supportive medical reports, and today, following a hearing, the Judge granted “X” restoration of full capacity.

Pursuant to N.J.S.A. 3B:12-57.g.,  Guardians are required to encourage the ward to participate in decision-making “in order to encourage the ward to act on his/her own behalf whenever s/he is able to do so, and to develop or regain higher capacity to make decisions in those areas in which s/he is in need of guardianship services, to the maximum extent possible.” The incapacitated person has the right to petition the court for modification or termination of the guardianship, R. 4:86-7(a)(6),  and the Guardians have the duty under N.J.S.A. 3B:12-57f(10) to institute such legal actions as the “ward” could institute. How is that done? By filing a formal Verified Complaint and order to Show Cause with the court who has jurisdiction over the guardianship, supported by medical proofs and other relevant evidence.

Needless to say, “X” was grinning from ear to ear to receive the Judgment of restoration. So was the Judge … they rarely have the opportunity to see such a fantastic recovery by a person under guardianship.

Call us for advice on guardianship, conservatorship, power of attorney and elder law …. 732-382-6070



Guardians can’t sell real property without court approval

If you’ve been appointed as the Guardian of the Property (Guardian of the estate) for an incapacitated person, you probably know that you have a lot of authority and power regarding the ward’s assets. While you do have to file an annual accounting in New Jersey as specified in the Judgment appointing Guardian (NJSA 3B:12-42), in general the New Jersey probate court does not micromanage the guardianship (unlike some other states). The guardian is expected to exercise prudent judgment in deciding what and when to spend, and how to allocate investments, all in the ward’s best interests (NJSA 3B:12-43, 44 and 45).

There are specific rules regarding real estate– NJSA 3B:12-49 and 12-59, and N.J. R. 4:94-1 to 7. If a guardian needs to sell or mortgage or purchase real property, a Verified Complaint must be filed with the Superior Court, Chancery Division, Probate Part. For a request to sell, the Complaint should be supported by proofs concerning the assets, income and budget needs of the ward, need for the transaction, value of the property, and proposed listing agreement.need for the transaction. Some counties will not only require a proceeding to get permission to sell, but a second proceeding to confirm the contract sale price. Similar appropriate proofs are needed if the guardian wishes to purchase property for the ward or his family, or wishes to place or refinance a mortgage on it to obtain cash, such as using a reverse mortgage when the ward is starting to run out of money but could safely remain in the home.

The process can take months, so it’s important not tyo wait until the last minute. Even if we can pull together the Complaint and proofs quickly, it may not be heard by a court for months. A weather mishap or other emergency can cause further delays. And sometimes a family member shows up at the last minute and throws sand in the gears. I had a case once where my client was the guardian and her ward owned a property that his daughter lived in. The daughter had been paying the taxes and insurance and utilities for a few years in place of rent, but then stopped paying, causing obvious problems. The ward was in a nursing home, applying for Medicaid, and Medicaid rules required the property to be listed for sale. We filed a petition for court permission to sell. Everyone was served. A few days before the court date, the daughter wrote a letter objecting to the sale because she wanted to stay there. As a result, the court denied the petition and placed it on the contested list, a process that can go on for many, many months. The property was now at risk of being lost to a tax sale because no one had any money to pay the taxes. It was a huge problem.

Another example involves reverse mortgages to pay for home care. Along with the delay in the court system, it can take several months administratively to close on a reverse mortgage. So the guardian shouldn’t wait until the money is running out before starting the process — how will the guardian keep paying for the home care?

As I like to say, careful planning can prevent a crisis.

Call us for advice and representation on guardianship issues throughout New Jersey… 732-382-6070