A guardianship proceeding protects and empowers vulnerable adults and their caregivers. Families whose loved ones have special needs require specific guidance and legal planning so their loved ones preserve assets and receive government benefits. If a person does not have the capacity to handle their financial or medical needs, and did not sign a Power of Attorney, someone will need to apply to the Court on their behalf to be appointed as a guardian to help manage their affairs. The process is expensive and invasive, but ultimately court supervision provides peace of mind and structure for unstable or highly contested family situations. The Court appoints an attorney to represent the alleged incapacitated person, and based on that report the Court will appoint a guardian. The guardian usually must post bond, and is subject to regular reporting and filing requirements as the Court supervises the arrangement. The firm regularly manages and prepares guardianship proceedings for clients, and is prepared to handle contested guardianship cases in the Chancery Division if necessary.
If a family already has a guardianship in place, there are legal maneuvers available to preserve the incapacitated person’s assets while also maintaining eligibility for governmental benefits such as SSI and Medicaid. For individuals under 65, special needs trusts established on behalf of the incapacitated person themselves, or by another person in the family, can secure funds for the expenses that the government will not cover. These legal documents need to be drafted carefully and precisely to avoid ineligibility for benefits, and Archer Brogan attorneys have experience preparing these trusts in a variety of situations. The firm also prepares Medicaid plans for older individuals with guardians who are attempting asset planning per leading New Jersey Supreme Court cases on the subject, such as in re Keri. This case in particular allows for Medicaid asset planning to be done even after someone is declared incapacitated as long as the planning does not risk the incapacitated person’s future care and well-being.
If your loved one does not have the capacity to handle their financial or medical needs, and did not sign a Power of Attorney, you may need to apply to the Court to have yourself or someone else appointed as a Guardian to help manage their affairs. Archer Brogan regularly manages and prepares guardianship proceedings for clients.
Guardianship proceedings are difficult and involve many different professionals. They can therefore be rather expensive. However, there are ways to minimize the expense of a guardianship proceeding, the best of which is to avoid one altogether through the use of a durable power of attorney. Barring that, the less conflict there is amongst family members, the easier it is to use one central point of contact with the Court to govern an incapacitated person's affairs. If you or one of your loved ones is facing a situation where you think a guardianship might be a possibility, please call and the firm's attorneys can advise you as to what you can do to protect yourself and your family.