Powers of Attorney & Guardianship

A Power of Attorney is an essential part of a well-rounded legal plan. It allows you to appoint someone you trust to make decisions on your behalf if you are unable to do so. Whether due to illness, travel, or unexpected circumstances, having the right documents in place ensures that your financial, legal, and medical matters are handled according to your wishes. 

All Powers of Attorney are not created equal.  Many that we see are missing crucial language, particularly if you are in asset protection and in need of long-term care.  Those missing provisions can lead to costly and time-consuming Guardianship proceedings if a spouse has a medical crisis, when you are just trying to preserve assets to keep you home and safe.

Sadly, many people find out too late that they should have signed a Power of Attorney.  If you do not have legal capacity and someone needs to make decisions or undertake transactions, and you do not have an agent under a properly executed Power of Attorney who can act for you, then someone will need to bring a lawsuit, called a Guardianship proceeding to have a Probate Court appoint someone to serve as your Guardian. This can be a lengthy and expensive process, which should be a last resort in most cases.

At Brogan Elder Law, we help individuals and families throughout New Jersey create powers of attorney that are carefully tailored to their specific needs and goals.

 

What Is a Power of Attorney & a Guardianship

A Power of Attorney is a legal document that gives a trusted person, known as an agent, the authority to act on your behalf. This authority can be broad or limited, depending on your preferences and circumstances.

Establishing a power of attorney in advance allows you to maintain control over who will make decisions for you and how those decisions should be handled. But you can only sign it if you understand it legally, and that’s where many people get lost.

A Guardianship is a full court-filed lawsuit.  In New Jersey, two complicated evaluation reports and affidavits from different medical professionals must conclude a person cannot manage their affairs.  Then a lawsuit is filed and a court-hearing occurs. As part of the proceeding, a Court-Appointed attorney reviews the complaint filed, meets with alleged incapacitated person, as well as the Petitioner for Guardianship and reports back to the Court prior to the hearing.  It can often be messy, expensive, and because of administrative backlogs, equally often takes months to obtain a judgment appointing the Guardian.

 In certain circumstances nvolving individuals with special needs, it is known prior to their 18^th birthday that a Guardianship will be appropriate and New Jersey now has a statute that allows families to begin that process in the months prior to the child becoming an adult. In other situations, a person with special needs, has legal capacity and a Guardianship should be avoided.  They would be benefited by having a Power of Attorney, Living Will (Medical Directive), and Medical Authorization (a global HIPPA Release) Form executed once they are 18, instead.

 

Key Areas a Power of Attorney or a Guardianship Can Cover:

Financial Matters

You can authorize someone to manage your finances, including paying bills, handling investments, managing accounts, and overseeing other financial responsibilities. This can be especially important if managing finances becomes difficult due to illness or age. You probably don’t want a well-meaning judge making that appointment.

 

Legal and Business Matters

A power of attorney can allow your agent to act on your behalf in legal matters, business operations, or specific transactions such as real estate closings. This provides continuity and flexibility if you are unavailable. To handle such things is the primary reason guardianships are sought when no Power of Attorney is in place.

 

Medical Decisions

Healthcare directives and medical powers of attorney allow you to designate someone to make medical decisions if you are unable to communicate your wishes. These documents can also outline your preferences for treatment and care. With them properly executed while you have capacity, you avoid a rush by a hospital to bring a Guardianship proceeding against you when you are unable to state your wishes.

Having these documents in place can prevent confusion and ensure that your wishes are respected during critical moments without court intervention.

 

Limited vs. General Powers of Attorney and Plenary Guardianships

Powers of attorney can be customized based on your needs:

• Limited Power of Attorney
  Grants authority for a specific task or a defined period of time, such as handling a real estate transaction.
• General Power of Attorney
  Provides broader authority, allowing your agent to manage a wide range of financial and legal matters.
• Guardianships in New Jersey can be Plenary (meaning all aspects of decision-making) or Limited (carving out some retained rights), however, in practice Courts in New Jersey greatly favor Plenary Guardianships.

We work closely with you to determine the appropriate scope of authority and ensure that your documents reflect your intentions.

 

A Personalized Approach to Planning

Every situation is different. We take the time to understand your concerns, your relationships, and your long-term goals before drafting your documents.

Our goal is to create powers of attorney that:

• Protect your interests
• Clearly define authority and responsibilities
• Reduce the risk of confusion or disputes
• Provide peace of mind for you and your loved ones

 

Plan Ahead with Confidence

A properly drafted power of attorney can make a significant difference in how smoothly your affairs are managed if you are unable to act for yourself. 

If you are ready to create or update your documents, contact Brogan Elder Law to schedule a consultation. Call 732-701-9999 or click here to email us now.