Don’t Wait until the Last Minute to Tackle the Legal Problems Caused by Incapacity

There’s a natural human tendency to kick cans down the road when we can, and to put off those things that just don’t seem imminently necessary. People enter into legal arrangements without writing documents. They avoid signing Wills or Powers of Attorney because they feel well and everything seems fine. And when a family member is developing signs of incapacity — whether that’s due to the onset of dementia, a history of alcoholism, or some other brain trauma– the spouse or the family often just drifts along, adjusting the daily routines to keep that person safe but not addressing the looming legal issues. It when something important has to get done — financial, medical, legal — and  they discover that  no one has any actual legal authority to get it done, that there’s a crisis.

A case in point is when a house needs to be mortgaged or sold. This legal transaction can only be carried out by the homeowner or his/her lawful agent — Guardian or Agent under Power of Attorney. One spouse can’t simply sign legal documents on behalf of the other spouse. A closing can come to a grinding halt if one party to the transaction lacks  legal capacity to participate, and there’s no signed power of attorney document. Under the best of circumstances it can take three months to initiate and conclude a petition for guardianship. Now, in some counties, it’s even longer than that. Meanwhile a deal could fall through.

Another example is a court case in which it turns out that one of the parties  lacks capacity to proceed. This might be a matrimonial action, a suit for damages, a bankruptcy or any other kind of case. In many instances, a well-constructed power of attorney document (POA) can provide all the authority that may be needed, but in the absence of a POA, or in certain areas of legal actions,  a guardian has to be appointed. Months may go by as a guardianship action or protective arrangement action is pursued.

Careful planning can create a crisis. Call us for help with senior care planning needs…. 732-382-6070

Estate planning pointers for unmarried couples

Are you in a long-term relationship, or even engaged to be married? Is that wedding postponed indefinitely due to the current pandemic? Do you have children who would need a guardian if you pass away? Do you have children from a previous relationship? Do you want to make sure that your partner is the one who will inherit your estate, or will be the one who’s allowed to handle your financial affairs and your medical decisions if you become critically ill?

The “laws of intestacy” specify that the estate of an unmarried person who has no Will would pass in equal shares to the children equally and if a child was deceased, then his/her share would pass to his/her descendants if any. If the deceased has no children, the estate passes to his/her surviving parent or parents, and if none, then to the descendants of the parents (i.e., the deceased’s siblings or nieces and nephews). If a single individual dies and has no surviving parents, children, siblings or nieces/nephews, the estate will pass to further remote relatives such as cousins. Ultimately, the estate can escheat to the State of New Jersey when there are no kin who can be located.

The only way to be sure that your estate will pass to your partner is to structure things properly in writing. There will be NJ inheritance tax due if it passes to your partner who isn’t your spouse, so that needs to be factored into the planning. The passage of the estate can be managed through a Last Will and Testament or a Living Trust, (or both) as well as certain beneficiary designations, depending on your specific situation.  Each case needs individual attention.

With a Will or Trust  you can make specific arrangements to protect the well-being of your own children, whether that’s by designating a Guardian (for minors) or structuring the way their inheritance would be managed.

As for decisions to be made during your lifetime if you become incapacitated, there is a preference in the statutes for next of kin as decision-makers. If you want your partner to be the primary Agent on your behalf, you would need to sign legal documents to that effect — power of attorney, health care power of attorney. You can also sign an Appointment of Funeral Agent. All of this documentation goes a long way to prevent disputes over who has authority, who inherits, and who should make decisions for you.

You may be wondering if you can just wait until after the wedding. Of course you can. Should you? That’s a different issue. Careful planning can prevent a crisis.

Call us to prepare or update your estate plan …….. 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