Guardianships: What Happens if I Become Incapacitated?

The day may come when you need someone else to make physical and financial decisions on your behalf. Are you ready?

Most people take daily life for granted. Going to the bank, shopping, work or cooking for yourself and family are routine, everyday tasks. For anyone, accident or sudden illness can end that normal routine in a heartbeat. While parents are responsible for children under 18, adults who are disabled may need the help of a guardian.

As we discussed earlier, a Power of Attorney is an essential document for anyone over 18. The purpose of a Power of Attorney, as part of an estate plan, is to ensure that you choose a person or persons to make decisions for you should you become incapacitated and unable to help yourself.

With an estate plan and a comprehensive executed Power of Attorney for healthcare and financial decisions, adults are prepared if they become incapacitated by accident or by time. When a Power of Attorney is not in place, a guardian may be needed.

What is a guardian?

The state of New Jersey defines a guardian as “a person or agency appointed by a court to act on behalf of an individual.” A guardian is appointed for minor children and for adults who do not have the capacity to make important decisions about their care and finances. The two levels of guardians in New Jersey include:

*        General guardianship: A general guardian is appointed for individuals incapable of making any meaningful decisions.

*        Limited guardianship: Sometimes an individual remains capable of making some, but not all decisions. Rather than relieve an adult of their authority to make all their own decisions, care is taken to limit the authority of a guardian to just those areas where help is needed.

When a loved one is incapacitated, and there are no documents in place assigning agency to a family member or trusted friend, a family may seek the appointment of a guardian to provide needed care and protection. The legal process to appoint a guardian involves an evaluation by two licensed physicians of the physical and mental capacity of the allegedly incapacitated person, their preparation of physician affidavits, and the initiation of a court action for the appointment of guardian. The two types of guardians include:

• Guardian of a person: The guardian of a person makes medical, residential and other decisions to ensure the physical well-being of the individual.
• Guardian of property: A guardian of property manages property and assets and makes financial decisions to preserve the economic well-being of an incapacitated person.

A skillfully prepared estate plan usually eliminates the need for an expensive and intrusive legal guardianship proceeding. However, if the need arises, an experienced guardianship attorney in Springfield can help you make the legal arrangements needed to protect the well-being of a loved one.