POA and Legal Guardianship

Advance Directives, POA,    legal guardianship  Credits: slideplayer.com

I originally was going to write on another aspect of Medicare, but I had this happen to me recently and felt it important to share this experience.  I have been a Medicare representative for many years and understand the need for legal guardianship, power of attorney and living wills. 

A person cannot get anything done for an incapacitated loved one without these documents and legal protections.  My wife of 26 years was recently in a COMA (she just woke up today 4-20-16) and I needed to sign documents on her behalf and concerning her care.  I had a living will but did not keep up with it and the lack of keeping it current could have been costly.  I was lucky that both the hospital and my mortgage company were understanding, but many entities are not.  To protect themselves and their clients/patients, they will not provide you any information (No matter who you are) without the proper paperwork. 

The hospitals and doctors are bound by HIPPA laws that protect patients’ private information. Medical matters are considered private and cannot be discussed or addressed by doctors or hospitals, without expressed permission. 

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Legal guardianship will allow you power to make financial or medical decisions on an incapacity loved ones’ behalf.  You must petition the court in your city/town and it is wise to consult a lawyer who is knowledgeable in this arena.  It will not be free and in some situations it can be expensive.  You can do it yourself too, but I would still recommend consulting an expert.  Legal guardianship can take a variety of forms. The two forms that will apply to incapacitated or partially incapacitated people are:

Guardianship of the person can take one of two forms:  

o   General Guardianship

§  sometimes referred to as ‘plenary’ guardianship

§  appropriate for people who have been found incapable of making or expressing any decisions 

o   Limited Guardianship

§  covers decision-making around residential, educational, medical, legal, vocational, and financial issues

§  Appropriate for people who have been found capable of making and expressing some, but not all, decisions


Advanced Directives for Health Care is important.  Please see the information in this hyperlink.  This may provide additional understanding about the process. 

There are other family options for guardianship that include:Family Options Regarding Guardianship

Families in New Jersey should be aware that they have the following options in regards to guardianship.  

1.    An individual can appoint a Power of Attorney (POA) to make decisions on his or her behalf

a.    Individuals with a disability must be able to understand, on a basic level, that they are appointing someone to make decisions on their behalf

b.    An individual appointing a POA must be able to consent to it

c.    A POA can cover a person and/or property

d.    A POA can be revoked and/or changed at any time, based on changing needs

e.    A POA is significantly less costly than a guardianship

f.     It is best to work through an attorney to establish a POA 

2.    Families may pursue guardianship “Pro Se,” which means “petitioning without attorney”

a.    The person seeking guardianship represents himself or herself in court
i. Eliminates the cost of hiring an attorney to file the petition
ii. Remaining costs include court fees, guardianship assessments by a psychologist or physician, and the required court-appointed attorney to represent the individual

b.    This is a great choice for families who can complete the process on their own, especially if the individual is not already under DDD-funded services.

c.    Forms and instructions can be found at www.judiciary.state.nj.us.
i.  Click on “Represent myself in court”
ii.  Click on “How to file for guardianship of a developmentally disabled person” 

Please Note: These instructions include the information that two reports must be signed under oath attesting to the individual's need for guardianship, and that one of those reports is submitted by a DDD official, typically the regional administrator. Please be aware that a DDD official is only able to sign such a report if he or she or DDD staff has firsthand, personal knowledge of the individual. If this is not the case, then a second affidavit will be needed from a physician or NJ licensed psychologist.

3.    Families can hire an attorney at their own cost to complete the entire process.

a.    A relative or other interested party may choose to pursue appointment as guardian privately, at his or her own expense
i.  This is the only option if guardianship is to be of personal and property

4.    Families can ask the Bureau of Guardianship Services to process a guardianship petition, but:

a.    There is currently a high volume of pending requests

b.    This process is for guardianship of the person only

c.    Families seeking guardianship of property should pursue hiring an attorney, as described above


John L. Clark III, has been a licensed life and health insurance agent for ten years.  Mr. Clark has worked with various insurances and companies. Ranging from voluntary benefits with the American Family Life Assurance Company or AFLAC to life insurance with Mutual of Omaha and Medicare insurance with United Healthcare, John provides a wealth of knowledge.  Bringing his varied experience to many businesses and individuals, John now speaks to Senior audiences throughout the Tri-State Area, in hopes to discuss options and provide answers to people asking questions about senior concerns.  

The opinions expressed herein are the writer's alone, and do not reflect the opinions of TAPinto.net or anyone who works for TAPinto.net. TAPinto.net is not responsible for the accuracy of any of the information supplied by the writer.

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