When an individual does not have a power of attorney and becomes incapacitated, a guardianship will be necessary to appoint a friend or family member to be the incapacitated individual’s guardian.
If there is no responsible family member or friend available, adult protective services, a hospital or a nursing home may file a guardianship petition and request that the State of New Jersey’s Office of the Public Guardian be appointed as guardian.
After a guardianship petition is filed, the Court would then appoint an attorney to represent the individual’s interests before the Court.
Once a guardian is appointed, the Court retains authority over the incapacitated person and can require the guardian to file annual accountings that are reviewed to ensure that the guardian is lawfully performing his or her duties.
The guardianship process usually takes a number of months and usually ends up costing a few thousand dollars, which are paid out of the individual’s assets.
Aside from the fact that a judge has the final decision as to who is appointed as guardian, the current laws of the State of New Jersey regarding guardianships dictate how the individual’s assets have to be spent, which can severely impede any type of estate planning.
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