21 Alzheimer, POA Guardianship

ESTATE PLANNI NG FOR ALZHEI MER PATIENTS & GUARDIANSHIP
OF DISABLED ADULTS
Compi l ed by Kenne t h Vercamme n, Co- Chair, ABA Estat e Planni ng,
Probat e & Trust Commi t t e e , GP ol o
If a person has been diagnosed with Alzhei mer' s disease, it is important
to immedi atel y conduct Estate Planning with the assistance of an attorney.
Close to 4 million Americans are thought to hae Alzhei mer' s disease !
yet half of them remai n undiagnosed.
It's all too easy to mista"e many earl y Alzhei mer' s disease symptoms
for natural signs of aging. Initial symptoms, li"e forgetful ness, tend to be so
subtle that they can easily be dismissed as #$ust getti ng old.# %ymptoms
can also ary widel y among indii duals.
&ecognizing and treati ng Alzhei mer' s disease earl y is i tal. Early
diagnosis of Alzhei mer' s disease is important because that is when the most
can be done to slow the progression of symptoms. Early treat ment can
hae a significant effect on maintai ni ng a patient' s current leel of abili ty.
'ind help for yourself. (any people concerned about Alzhei mer' s
disease discoer that they need addi tional answers. )our doctor is your
pri mary source of informati on about Alzhei mer' s disease.
If a person has been diagnosed with Alzhei mer' s disease, but is still
competent, a formal Power of Attorney, *ill and +iing *ill should be
prepared immedi atel y. ,enerall y, many attorneys will re-uire.
/. A note from the 0octor indicati ng the person is competent to sign a Power
of Attorney 1and *ill if the *ill has not yet been prepared2
3. 4he client to specificall y adise the attorney they want to appoint the
specific person to handle their financial affai rs. 14he attorney cannot rely on
a famil y member saying what the client5 patient wants.2
Prior to an indi i dual being unable to manage his or her life as a resul t
of a mental or physical disabili ty, legal planni ng should be done. If a legall y
prepared Power of Attorney was signed, a trusted famil y member, friend or
professional can legall y act on that person's affai rs. If a Power of Attorney
was not signed, an attorney may be retai ned to file a formal complaint and
other legal pleadi ngs in the %uperior Court to permi t the trusted famil y
member, friend or professional to be able to handle financial affai rs.
What is a Power of Attore!"
A Power of Attorney is a writt e document in which a competent
adul t indi i dual 6the #princi pal #7 appoints another competent adul t
indi i dual 6the #attorney! in!fact#7 to act on the principal ' s behalf. In general,
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an attorney! in!fact may perform any legal function or tas", which the
principal has a legal right to do for him5herself. 4herefore, the doctor often
must determi ne if the recentl y diagnosed Alzhei mer patient is competent to
sign a Power of Attorney.
4he term # #$ra%& e # in reference to a Power of Attorney means that
the power remai ns in force for the lifeti me of the principal, een if he5she
becomes mental l y incapaci tated. A principal may cancel a Power of
Attorney at any ti me for any reason. Powers granted on a Power of Attorney
document can be ery broad or ery narrow in accordance wi th the needs of
the principal.
Wh! is Power of Attore! so i'(ortat"
Eery adul t has day! to! day affai rs to manage, such as paying the bills.
(any people are under the impression that, in the eent of catastrophi c
illness or in$ury, a spouse or child can automati call y act for them.
8nfortunatel y, this is often wrong, een when $oint ownershi p situati ons
e9ist.
4he lac" of properl y prepared and e9ecuted Power of Attorney can
cause e9treme difficul ti es when an indi i dual is stric"en wi th seere illness
or in$ury renderi ng him5her unable to ma"e decisions or manage financial
and medical affairs. :ew ;ersey has legal procedures, guardi anshi ps or
conseratorshi ps, to proi de for appoint ment of a ,uardian. 4hese re-ui re
formal proceedi ngs and are e9pensi e in court. 4his means re-ui rement of
lawyers to prepare and file the necessary papers and doctors to proi de
medical certi ficati ons or testi mony regardi ng the mental incapaci ty of the
sub$ect of the action. 4he procedures also re-ui re the inol ement of a
temporary guardian to inesti gate, een intercede, in surrogate
proceedi ngs. 4his can be slow, costl y, and ery frustrati ng.
Adance preparati on of the Power of Attorney can aoid the
inconeni ence and e9pense of legal ,uardianship proceedi ngs. 4his needs
to be done while the principal is competent, alert and aware of the
conse-uences of his5her decision. <nce a serious problem occurs, it is too
late.
Powers of Attorney are generall y gien by one person to another so
that if the grantor of the power becomes ill or incapaci tated, the Power of
Attorney will permi t the holder of it to pay the grantor' s bills and to handle
the grantor' s affairs during the inabili ty of the grantor to do the same.
*ithout a legal Power of Attorney or court ordered guardianshi p, een
a spouse does not hae the legal authori t y to sign thei r spouse's signature.
If a alid Power of Attorney is not legall y prepared, signed and
ac"nowl edged in front of an attorney or notary, it is inali d. *ithout a Power
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of Attorney, a ,uardianship <rder and ;udgment must be obtai ned from the
%uperior Court to permi t complete legal decision! ma"i ng.
According to 0isabili ty +aw, A +egal Primer published by the :ew ;ersey
%tate =ar Association, #A guardian is a person appointed by a court to ma"e
financial and personal decisions for a person proen to be a legall y
incompetent5 incapaci tated person.# p//
)* Whe is a +$ar#i a ee#e#"
A guardian is needed when an indi i dual cannot manage his or her life
as a resul t of a mental or physical disabili ty, alcohol or drug addicti on. 4he
person for whom a guardian is appointed is called a #ward#. 0isabili ty +aw at
p//
+egislati on 6P.+. />>?, c @?>7 changed the designati on of #mental
incompetent # to #incapaci tated person# in all laws, rules, regulati ons and
documents. :ew ;ersey +awyer (arch 3@, />>A
,* What ri+hts #oes a i-o'(et et . i-a(a-i tat e# (erso &ose"
8nless a Court orders otherwise, a ward5 incompetent5 incapaci tated
person does not hae the right to decide where to lie, spend money, use
propert y, appear in Court or undergo medical treat ment without the
approal of his or her guardi an. An unmarri ed incompetent5 incapaci tated
person also loses the right to marry.
/* How #oes so'e%o#! %e-o'e the +$ar#i a of aother"
,uardians are appointed by Courts after the person in need of
guardianshi p is proen incompetent. ,uardianshi p actions can be brought
under the general 1incapaci t y2 statute 6:.;.%.A. @=./3! 3B et se-.7 or under
the statute dealing with people who recei e serices from the %tate 0iision
of 0eelopmental 0isabili ties. :.;.%.A.. @C.4! /DB.4 et se-. ,uardians who are
married to the incompetent5 incapaci tated person or are parents of an
unmarri ed incompetent5 incapaci tated person can choose who will become
the guardi an after the guardians die and include a clause designati ng their
successor in thei r *ills. 0isabili ty +aws p/3. 8nder the general
incompetency statute, a Complai nt re-uesti ng ,uardianshi p must be filed in
the %uperior Court, plus a detailed Affidai t by the person re-uesti ng to be
,uardian detailing the assets of the incompetent5 incapaci tated person plus
reasons why the incompetent5 incapaci tated person is no longer able to
manage their affairs. Affidai ts of two doctors are also needed. 4he Court
will appoint a temporary attorney to interi ew the incompetent5
incapaci tated person and prepare a report to the Court. 4he court costs
and legal fees often e9ceeds E4,CCC.
0* Who -a %e a +$ar#i a"
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,enerall y, a close relati e or a person wi th a close relati onshi p to the
proposed incompetent5 incapaci tated person who will act to protect the
incompetent5 incapaci tated person' s best interests can be guardi an. *hen
a close friend or relati e is not aailable, the Court may appoint the Public
,uardian 6for persons oer DC7 or an Attorney to sere as guardian.
1* What are the ri+hts of the (ro(ose# i-o'(et et . i-a(a-i tat e#
(erso (rior to heari+"
4he proposed incompetent5 incapaci tated person is enti tl ed to recei e
adance notice of the guardianshi p hearing, to be represented by a lawyer
and to present a defense at the hearing.
2* Is -o$rt a((ro3a& re4$ire# to se&& rea& estat e if so'eoe is
#e-&are# i-o'(et et . i-a(a-i tat e#"
)es. )our attorney can discuss transferri ng certai n assets to -ualify for
(edicaid.
Elder law articles are aailable on the websi te www.n$ laws.com
4o schedule a consul tati on regardi ng Estate Planning for Alzhei mer patients
or ,uardianshi p of Adul ts, call the +aw <ffice of Fenneth Gercammen, Es-.
at 6?@37 B?3! CBCC Edison, :;
5eet h A* 6er-a''e is a (iddlese9 County trial attorney who
has published /@C articles in national and :ew ;ersey publicati ons on Elder
+aw and litigati on topics. He has spo"en on *ills and Elder law on
numerous occasions to the Adul t Communi t y %chools in (etuchen,
%ayrei lle, <ld =ridge, %outh =runswic" and Edison5Clara =arton %eniors and
Perth Amboy %eniors. He often lectures to trial lawyers of the American =ar
Association, :ew ;ersey %tate =ar Association and (iddlese9 County =ar
Association.
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