By Fredrick P. Niemann, Esq. of Hanlon Niemann, a NJ Guardianship Attorney

A competent 91 year old woman signed a Power of Attorney over to her niece for access to her 401K and other funds.  The beneficiary also signed the consent, but the Power of Attorney was not accepted by the investment company because the woman’s signatures did not match their records on the pages she was required to sign, due to her age and illness.

The question presented was if the niece applied for guardianship over her aunt through the court, will a court’s guardianship order give her the right to access her aunt’s 401K?  Would the court require the guardian to report an account of how the money is used?

The answer is generally speaking, yes.

If you satisfy the requirements of the statute and Rules of Court, and provide the court with an order that appoints the niece as guardian of the person and property, (as well as alternative payee for social security benefits), the court will generally require the niece to post a bond before qualifying as a court approved guardian (the premium comes from the aunt’s funds).  Thereafter, the guardian will have to file an annual informal report with the court.

The statute was amended to mandate a bond whenever a guardian is appointed for a minor or a person who is disabled.  I believe that the incapacitated aunt due to Alzheimer’s disease falls within this category.

However, there is no mandatory bond requirement in a New Jersey guardianship.  Rather the statute provides that a bond is required unless the court waives the bond.  I doubt the court will waive the bond where the guardian is a niece as opposed to say a spouse.

But in this case, why file for a guardianship just yet.  If you get to the investment company’s legal counsel, you might be able to work something out to get the POA honored such as providing affidavits from the witness to the POA.  Further, I would generally recommend a conservatorship proceeding in lieu of a guardianship filing.

If you have questions regarding a guardianship or avoiding a guardianship proceeding, please contact Fred toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com, or you can visit him at www.newjerseyguardianshipattorney.com.