FindLaw KnowledgeBasePublished: 2009-09-21
New Jersey laws governing guardianships and the care of incapacitated persons clearly express a preference for having a family member make important decisions. These provisions, found in New Jersey Statutes § 3B:12-25, state that an incapacitated person’s spouse, domestic partner, or heirs would preferably be appointed as a guardian.
Recently New Jersey courts were faced with a difficult decision: should a spouse be preferred over an adult heir when assigning a guardian? In this unique case, the subject of the guardianship had taken legal action before her incapacitation to grant her adult daughter financial and health care powers of attorney. Her spouse contested the daughter’s appointment as guardian, stating that he should be named guardian by virtue of his spousal relationship.
Fundamentally, the New Jersey statute gives the court the discretion necessary to appoint a guardian who will act in the incapacitated person’s best interest. The court decided that it was more important to honor the wishes of the incapacitated person than to presumptively assign a spouse or domestic partner as guardian.
How Can Effective Estate Planning Help?
Every person − young or old, wealthy or of modest means, single or married − will benefit from estate planning. Contrary to popular belief, estate planning is not just about passing assets on to future generations. Tools such as wills, trusts, powers of attorney and health care directives will not only play an important role in the distribution of property, but are also critically necessary to empower selected loved ones to make financial, health care and end-of-life decisions during your lifetime.
Expressing your wishes (financial or otherwise) in writing is only as effective as the instruments used to convey them. Cookie cutter, boilerplate forms like those commonly found on the Internet are not personalized, are not adaptable for your unique needs and do not account for all future contingencies you may encounter. Furthermore, New Jersey laws dictate specific steps that must be taken to ensure that wills, trusts and other legal documents are properly drafted, witnessed and filed — if you do not follow these procedures, your documents may be subject to challenge. Even worse, the court may choose to ignore them altogether and make decisions itself.
Perhaps most importantly, properly drafted and signed documents will keep the court from making important decisions about your property in the event of your death and your health care in the event of incapacity. The advice of an experienced elder law and estate planning attorney can be invaluable. A skilled attorney can draft documents that will stand the test of time, ensuring that your needs are met, your rights are protected and your wishes are honored.