Because clients often do not plan far in advance, once there is a cognitive issue and the client is no longer able to care for him or herself, if healthcare directives and extensive Powers of Attorneys and/or Trusts have not been done, very often the family of such a client is required to bring a guardianship under an Article 81 of the Mental Hygiene Law so that the guardian can be appointed to manage the property and to make personal needs decisions for the individual. Guardianships statutes for the same purpose in New Jersey are also available to address the appointment of a guardian for financial and personal needs.
This process can allow for important decision making about every day matters, whether that relates to money or to personal needs and medical decisions. It can also provide additional planning opportunities such as gifting, creation and funding of trusts and all types of long term care planning and tax planning that would not be available due to the lack of an adequate Durable Power of Attorney with extensive powers in it.
Some of these proceedings are contested by other family members or other interested parties. Often, a guardianship is needed to enjoin and/or stop a family member or others from taking advantage of the incapacitated person, to recover property that has been wrongfully taken from an incapacitated person, to remove an incapacitated person from a dangerous family member or friend and to address the best interest of the incapacitated person above all others. This type of litigation could often be seen as a “Pre Will Contest” matter and often many issues that remain unresolved in the persons’ planning can be addressed even in a contested guardianship proceeding.
There are also simpler guardianship proceedings that can be pursued for minors and for disabled individuals who do not have significant assets but otherwise require important surrogate decision-making.
Our firm has handled many guardianships and contested guardianships over the years for the benefit of our clients.