Guardianship Is Possible, But It May Be Unnecessary

Guardianship refers to the legal authority that is granted to an individual, more than one individual or to an agency, allowing that party to make decisions on behalf of a minor or an incapacitated adult. Guardianship is designed to ensure that a person's health, safety and welfare needs are met — and their rights are protected — when they are unable to care for themselves.

Most guardianships are also non-adversarial, but there are strict standards that must be met, because the courts will not enter an order of incapacity unless the evidence is clear that the person is unable to care for him/herself. This requires adherence to the Rules of Court and decisional case law with the input of qualified physicians and court-appointed advocates for the allegedly incapacitated person.

Alternatives To Guardianship

A well-drafted general durable power of attorney can, at a fraction of the cost, spare a family the time, expense and anguish of having to air its problems in a guardianship court proceeding that is open to the public. With proper planning, a power of attorney can be executed while you have the capacity to make decisions for yourself and designate whom you wish to be in charge when you can no longer make those decisions yourself.

Why is planning ahead and creating proper powers of attorney documents a good idea? For starters, contested guardianship cases can be emotional and stressful. The issues almost always involve either a battle as to who will be the guardian, pitting family members against each other because of personal disagreements as to who is better-suited to have the responsibility for, and power over a loved one. As indicated above, contested litigation, where doctors, temporary guardians and court appointed attorneys may be involved is expensive and can waste assets that can be put to better use.

Experienced Handling Guardianship Disputes

Sometimes, the alleged incapacitated person may fight the need for guardianship, particularly when he or she lacks the capacity to handle his/her affairs but still has the capacity to comprehend what is happening. This type of matter is made worse when one family member sides with the alleged incapacitated person and questions the motives of the person who brought the case to court.

If your situation reaches this point, I know how to explore the possibility of negotiated resolutions by discussing limited guardianships in appropriate cases and by trying to deal with other issues that may be the real driving force to opposition. If a trial is necessary, I provide my clients, as I do with probate litigation, with aggressive but professional advocacy.

Plan Today Prevent Headaches Tomorrow

I welcome the opportunity to discuss guardianships with you and explore if well-drafted powers of attorney documents can be a more effective and cost-efficient solution. Call 973-850-4121 or use our online contact form to meet with a lawyer and learn more about your options. I offer appointments at my Kinnelon and Riverdale offices for your convenience. I am available during regular business hours or by appointment. Both offices are handicap-accessible.