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Q:  What is guardianship and when is it needed?

A:  A guardian is needed when a person cannot manage his or her own affairs or care for himself/herself because of a mental or physical condition. A petition must be filed with the court requesting the appointment of a guardian. Medical evaluations by two physicians are necessary to establish the person’s condition. Notice is given to all next of kin who have a right to participate in the proceedings. The Court will appoint an attorney to represent the proposed incompetent person who will prepare a report to the court. A judge will hold a hearing to determine if a guardian should be appointed and who the guardian should be. Once appointed, the guardian must post a bond.

Q:  What authority does a guardian have?

A:  Unless limited by the court, the guardian has total control over the finances and the personal decisions of the incompetent. This includes deciding where he or she will live, how his or her funds will be spent and making routine medical decisions. For medical decisions regarding extraordinary care or for the sale of real estate, the guardian must obtain court approval.

Q:  What are the responsibilities of the guardian?

A:  The guardian must account carefully for all income and expenses. This is accomplished by the guardian filing an inventory listing of the incompetents assets as of the date of appointment and by filing annual accountings with the court detailing all income and expenses. A final accounting must be filed when the guardianship is terminated.

Q:  What are the alternatives to guardianship?

A:  A guardianship is time consuming, expensive, is a potential loss of privacy, and may result in the least qualified person being appointed guardian. You can protect yourself in the case of physical disability and mental incompetence through the use of a Durable Power of Attorney. Without a legal Power of Attorney or court appointed guardian, even a spouse does not have the authority to sign his/her spouse’s signature. A Power of Attorney permits you to select the person you desire to act for you. In the case of a court appointment, the guardian may be a total stranger.

Q:  What is a "Durable Power of Attorney"?

A:  A Durable Power of Attorney differs from a Standard Power of Attorney in that a Standard Power fo Attorney is good only as long as the principal is not incapacitated. A Durable Power of attorney remains in effect after incapacity. A Durable Power of Attorney must be drawn up before the principal is deemed incompetent. To make a Durable Power of Attorney effective, however, you must take care to draw it up properly and you must carefully select your agent.

Q:  What powers does an agent have using a Power of Attorney?

A:  A Power of Attorney must specify what powers are given (and not given) to the agent. Unless the principal wishes to limit the powers of the agent, the Power of Attorney should contain a broad list of specific duties of y our agent. For example, do you want your agent to be able to buy or sell real estate? Pay your bills? Get into your safe deposit box? Prepare your taxes? One reason to be specific in what owners you want to appoint is because third parties such as banks, the Internal Revenue Service, insurance companies, etc., will not always honor the document if the powers aren’t specific enough.

Q:  Can a principal revoke a Power of Attorney?

A:  Yes. A principal may revoke a Power of Attorney at any time by sending a letter to his or her agent telling him or her that the power of attorney has been revoked.

Q:  Can an agent act under a Power of Attorney after the death of the principal?

A:  No. A Power of Attorney ends upon the death of the principal. At that time, the person’s will becomes operative and the person named as executor carries out the intentions of the decedent.

Law Office of Joseph Pinizzotto
189 Route 37 West Toms River, NJ 08755
Phone: 732-244-0500 Fax: 732-286-0629