Caring for a Loved One - Guardianship, Powers of Attorney and Medical Directives

Holiday gatherings are often a time for us to gather with relatives and friends. The bustle of activity can highlight the impact that aging has had on our loved ones in the passing year. Observing decline in the people we care about can be unsettling and may generate many questions about how to best care for their needs. 

Creating a plan for dealing with problems before they develop, and putting a financial power of attorney and a healthcare power of attorney in place while your loved one is still competent can prevent a lot of misunderstanding, heartache and expense. If a loved one is already at a point where he or she is unable to care for and make good decisions for themselves, and if they are no longer competent to prepare financial and health care powers of attorney, Guardianship is the legal process that you must go through to be able to make decisions for them. 

Without guardianship or comprehensive powers of attorney, you will generally not be able to legally: 

1.  Authorize their admission or discharge from a hospital or nursing home;
2.  Hire and fire their doctors or authorize medical treatment; or 
3.  Use their assets to pay for their expenses and care 

There are two different types of guardianship in New Jersey, the Guardianship of the Person and the Guardianship of the Estate, both of which require court appointment. The same person may serve as both types of guardian and are frequently referred to as Guardianship of the Person and Property. 

Guardianship of the Person allows you to make decisions about where an incapacitated person will live, which doctors will attend to their health, and how their medical conditions will be treated. Guardianship of the Estate allows you to manage the assets and financial affairs of the incapacitated person. In many cases, this means that the primary responsibility of the Guardian of the Estate is to figure out how to best use their loved one’s financial assets to provide care for them for as long as they are in need of it. 

To be appointed as a guardian, you must be able to prove to the court that a person is incapacitated, or unable to govern themselves or manage their affairs. In practice, this means that a person must be unable to make generally rational decisions about their medical care, personal care or finances. The incapacity may be caused by physical illness, mental disability, or chronic use of drugs or alcohol. For example, many of the individuals who seek guardianship are the parents of special needs children who have recently turned eighteen. 

If a person is able to perform some but not all of the tasks necessary to care for himself the guardianship may be limited to the areas where help is most clearly needed. As guardianship is such a powerful appointment, a court will not order it unless it is necessary. A critical part of the procedure to assess the need for a guardian is to require affidavits from two professionals (routinely physicians or psychiatrists) confirming the person’s mental and physical condition. 

You must also provide detailed information about your request to the incapacitated person and their next of kin (frequently their spouse and children, but this could also include their parents, grandparents, siblings, nieces, nephews or grandchildren depending on the situation). These individuals will then also have a chance to participate in the court process and present evidence that may either support or detract from your case. 

The allegedly incapacitated person will also have a person (usually an attorney) appointed on their behalf to help ensure that their voice is heard during the court proceedings and to assist them with resisting the guardianship if that is their desire. If guardianship is awarded, a person seeking guardianship must agree to be a fiduciary of the incapacitated person, which means that they must do what is in the best interests of their ward, even if it conflicts with their own personal interests. 

To help confirm that guardians are honoring that commitment, they must submit an annual report to the Court providing details about how the incapacitated person is doing and how their money has been spent.

Guardianship carries with it a lot of responsibility. Speaking with an estate planning attorney who routinely practices in this area of the law can help you determine if guardianship is worth pursuing and how to accomplish it in a way that will be minimally disruptive for you and your loved one.

Written by: Jessica J. Sauer, Esq. and Kevin A. Pollock, Esq., LL.M.

 “To care for those who once cared for us is one of the highest honors.”-Tia Walker

Right to Name Guardian for Minor Children When Parents are Separated or Divorced

I was discussing the affect of a divorcee naming a guardian for minor children in a Will with a few colleagues the other day and I thought I would share some of our findings. 

When there is a custody dispute between a natural parent and a third party, the law regarding who has custody of the child is governed by the case:Watkins v. Nelson, 163 N.J. 235 (2000).

The court found that there is a presumption in favor of the natural parent which arises from a parent’s fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and is rooted in the right to privacy.  However, a parent’s right to custody of his or her own child is not absolute. The presumption in favor of the natural parent.  This presumption can be rebutted by a showing of gross misconduct, unfitness, neglect, or exceptional circumstances affecting the welfare of the child.

When a third party seeks custody of a minor child (or an incapacitated individual), the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of unfitness or exceptional circumstances. If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child.  So, at the end of the day, a court will decide who should have custody based upon what is in the best interests of the child.

In New Jersey, there also a statute on point as to the decedent's right to name a guardian and to what extent it will be honored.  The relavent statute is: N.J.S.A. § 9:2-5. Death of parent having custody; reversion of custody to surviving parent; appointment of guardian by superior court; removal
In case of the death of the parent to whom the care and custody of the minor children shall have been awarded by the Superior Court, or in the case of the death of the parent in whose custody the children actually are, when the parents have been living separate and no award as to the custody of such children has been made, the care and custody of such minor children shall not revert to the surviving parent without an order or judgment of the Superior Court to that effect. The Superior Court shall have the right, in an action brought by a guardian ad litem on behalf of the children, to appoint such friend or other suitable person, guardian of such minor children, and shall have the right to remove such guardian, and to appoint a new guardian or guardians, and to make such judgments and orders, from time to time, as the circumstances of the case and the benefit of the children shall require.

Even if the court does not honor your request for guardian, you can still set up a trust for your child, and you can name anyone you wish to act as trustee to manage your funds until the child is old enough to handle his or her own finances.  This is important because otherwise the guardian or surviving naturual parent will have complete authority over these funds.

To summarize, if you do not want the surviving parent of the child to receive legal custody of your child:
1) It is a good idea to create a Will;
2) You should name a guardian under your Will for your minor children and any incapacitated children because it gives that proposed guardian standing to sue the surviving natural parent for custody (I would also recommend giving reasons in the Will or elsewhere to estatablish why the person you are proposing as guardian would be better suited to care for the child than the surviving parent);
3) The courts do not have to honor your request as to whom you name as guardian, they will try to determine the best interests of the child; and
4) Regardless of custody issues, you should set up trusts for your children and name a trustee to manage the funds until the child is of age, otherwise the surviving parent will have authority as natural guardian to spend that money as he/she sees fit.

Choosing an Executor, Trustee and Guardian

Clients frequently ask me for advice on who they should name as Executor, Trustee or Guardian when creating their Last Will and Testament.  First, let me explain the difference between the three roles.

The Executor is the person who probates your Will, goes into your house and looks through all your things, safeguards your assets, gathers up your money, pays your bills, files any income tax, estate tax or inheritance tax returns that need to be filed, and then distributes the balance of your money according to the instructions in your Will.  One or more individuals or corporate fiduciaries can serve as Executor.

The Trustee is the person who takes the assets that the Executor (or Grantor) gives him, invests the money in a prudent fashion, and distributes the money to the beneficiary of the trust in accordance with its terms.  One or more individuals or corporate fiduciaries can serve as Trustee. 

The Guardian is the person who will raise your minor children until they are 18 (or longer for an incapicitated individual). 

The three main qualities that you want to look for in an Executor and Trustee are:

1. Someone that is trustworthy and won't steal the money;
2. Someone that will not be overwhelmed by the role, there is a lot of work involved; and
3. Someone that does not have a bad relationship with the beneficiaries and will be able to communicate with them.

You will notice that I did not say that the exeuctor or trustee must be good at investing money.  That is because I believe the other characteristics are much more important.  An honest person who is diligent can always hire an investment manager. They just need to keep an eye on the investment manager.

The three main qualities that you want to look for in a Guardian are:

1. Someone that will love and care for your children;
2. Someone that will raise your children in a manner that you wish (including religion, education, diet, etc.); and
3. Someone that will have a stable family household.

Frequently, clients will name one party as executor or trustee and another person as guardian.  Sometimes this can be a good idea as the two parties can then monitor each other.  Additionally, this is a way to get two parts of the family to interact.  However, if there is someone that you truly trust to serve in all three roles, it is usually best to name them and not divide the roles just for the sake of dividing the roles.

For all of these positions, age may be a factor as well as you may not want to name someone too young or too old.  It is a heavy burden to put on people.  I never, ever recommend naming people just so they won't feel excluded. 

Finally, an attorney can serve as an Executor or Trustee, but you can name whomever you wish.

Special Needs Planning in NJ - Part 3 of 4

ESTATE PLANNING FOR A SPECIAL NEEDS CHILD

In Part III of this Series, I want to discuss estate planning issues for parents of a special needs child.

A typical estate plan for parents without a special needs child includes:

1. Will;
2. Financial Power Of Attorney;
3. Health Care Power of Attorney;
4. Advanced Health Care Directive; and
5. Naming Beneficiaries of Retirement Plans.

The parent of a special needs child must also do everything possible to avoid giving money outright to the Special Needs Child. This includes arranging for care and financial resources for the Special Needs Child.

In order to do everything possible to avoid giving money outright to the Special Needs Child, there are certain steps that can be taken:

1) Setting up a special trust for the Special Needs Child that will not be counted against the child's income for purposes of eligibility for government programs;
2) Redoing beneficiary designation notices on life insurance contracts and retirement plans; and
3) Telling family members to either leave money to a special needs trust for the child or specifically exclude the Special Needs Child from their Wills.

There are also specific arrangements that need to be made to ensure that your special needs child is cared for after your passing. This includes:

1) Arranging for a guardian to be named for the Special Needs Child;
2) Arranging for government services (SSI, SSDI, Medicaid, etc.); and
3) Arranging for living arrangements for the child.

Parents of special needs children always have a lot to deal with, but much of this planning should be done shortly after you find out that you have a child with special needs. Most importantly, life insurance planning should be done as soon as possible. If you wait too long, you may no longer qualify for insurance - and special needs parents, more than most, need to guarantee that money will be there after they pass.

Special Needs Planning in NJ - Part 2 of 4

Guardianship

In Part II of this Series, I want to discuss why formal guardianship is important and how to go about being recognized as the legal guardian of a special needs individual.

Until the person turns 18, a parent can legally make decisions for the child. However, once a person turns age 18, he or she is an adult. As an adult, a person is entitled, and in fact obligated, to make his or her own decisions. If that person needs help making his or her own decisions, but is still competent, that person can execute a Power of Attorney.

If the person is not competent to make their own decisions, then another person can only have the legal authority to act on behalf of the incapacitated person if a court appoints them as Guardian.

The Guardian can:
1) make health care decisions for the child;
2) handle the finances of the child;
3) enter into contracts on behalf of the child;
4) deal with government agencies on behalf of the child; and
5) make decisions regarding living arrangements.

What is the process for naming a guardian?

Step 1: Determine if there is a need for a Guardianship, or if there is a better alternative (such as a Power of Attorney).

Step 2: Meet with an attorney to discuss all the information needed to help the attorney file any legal paperwork on your behalf. (E.g. Who will be the guardian, who would be a good backup guardian, what is the disability of the child, what are the living arrangements and needs of the child, who are the doctors, caregivers, does the child have any money in his/her name, etc.)

Step 3: Get the doctors to sign affidavits confirming child's inability to handle his or her own affairs.

Step 4: File the paperwork with the Court to have the child declared an incapacitated person and have the Court order an attorney be appointed for the child.

Step 5: Work with the Court appointed attorney to make sure that they have the information they need to file a report with the Court. The attorney for the child will need to interview the child and the proposed guardians.

Step 6: The court appointed attorney will need to file a report with the court either recommending guardianship, limited guardianship or that no guardian be appointed.

Step 7: The Judge will then rule on the matter.

If the guardianship is uncontested, the process usually takes about two months and can cost about $3,000 to $6,000. If the guardianship is contested by either the child or another person who wishes to act as guardian, the costs can become quite high. Accordingly, it is usually best to make sure that the child and immediate family members are in agreement with the guardianship plans.

Top Ten Reasons to Have a Will

1. To determine who gets your money (Naming beneficiaries)

2. To determine guardianship (Saying who will take care of you children)

3. To determine who controls the money (Naming of executors and trustees)

4. To minimize estate or inheritance taxes

5. To avoid the cost of an insurance bond (If you do not allow for an executor or administrator to serve without paying for an insurance bond, the court will require one. In New Jersey, this can cost your heirs $500 for each $100,000 of assets you leave them)

6. To develop a trust for your heirs (This controls the timing of payout to beneficiaries)

7. To specify the authority of the Executor and Trustees (E.g. should they run a business, sell your property, or keep certain stocks?)

8. To determine who pays estate taxes (you can actually specify this and frequently should)

9. It provides for a quicker probate process

10. It clarifies your living intentions after your death (in other words, it maximizes the chance that your heirs will respect your wishes)

Get Thee a POA

Don’t have a Power Of Attorney (“POA”) yet? You are not the only one. Millions of Americans find out too late that a POA is a very useful and inexpensive document to obtain. If you do not have a POA, in order for your spouse or loved ones to make financial and medical decisions for you, they must institute a guardianship proceeding.

A guardianship proceeding starts with the prospective guardian hiring an attorney and obtain at least two medical opinions about the alleged incompetent’s condition. The Court will appoint an independent attorney for the benefit of the alleged incompetent person, and that attorney must submit a report to the Court. Assuming there are no issues, the judge will hold a hearing and officially name a guardian.

Usually the judge will allow for attorneys fees, often about $10,000, and require the guardian to pay for an insurance bond. The fee for the bond depends upon the value of your assets, but it can cost several hundred dollars per year even for a small estate. (More than most attorneys charge for a POA.)

The whole process typically takes several months, which can delay important financial and medical decisions. Additionally, if anyone contests the guardianship, the costs will skyrocket and delay the proceeding.

Having a valid POA minimizes the hassles and cost of a guardianship proceeding. A POA is a legal document that allows others to act on your behalf when making financial and medical decisions. Your decision maker is known as your “attorney-in-fact”.

There are two kinds of POA. A traditional POA is only effective in the event of incapacity. A Durable POA is effective as soon as you sign it. Your choice of POA will be dependent upon your relationship with the attorney-in-fact. For example, you might exercise a Durable POA in favor of your spouse, but a traditional one in favor of a friend.

If you are planning to save some money and buy a POA from the internet or on CD, just remember, you get what you pay for. Some of the software is missing vital components. For example, it may not contain the requisite HIPPA language or the power to make gifts.

HIPPA language is important because of new laws regarding health care disclosure. Many doctors will not release your medical information without proper authorization, and your attorney-in-fact may still have to institute a guardianship proceeding.

The power to gift is essential if you wish to provide for your spouse or your heirs, particularly if you wish to engage in tax or Medicaid planning. Absent this power, your attorney-in-fact may only use your money for your benefit.

Remember, to save time, money and countless hours of aggravation, a POA must be in place BEFORE you become incapacitated.