By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Guardianship and Power of Attorney Lawyer
I advocate to all my clients that they have a power of attorney. Why? In addition to being substantially less costly than a guardianship action, a power of attorney can be far more effective than a guardianship in many cases.
Here are some examples to support my reasons:
(1) Avoiding the Courts: If the guardian wants to sell the ward’s house, the guardian must file an action in Superior Court requesting the court’s permission to permit that sale. A power of attorney document can be drafted to permit the agent to sell the principal’s real estate without the need to go to court to obtain court approval. A big cost and time saving(s)
(2) A guardian may wish to engage in Medicaid and asset protection planning, or tax planning with his or her ward’s estate. This type of planning often involves gifting the ward’s assets to family members. A power of attorney document can be drafted to permit the agent to gift the principal’s assets in appropriate circumstances, such as for Medicaid or estate tax planning. I can’t tell you how beneficial this can be. But one needs to be careful since the potential for abuse exists if the agent abuses this power.
A guardian must go to court to obtain the same asset protection planning. When a court decides that a person is incapacitated in the context of a guardianship, the guardian cannot gift the assets of the ward for Medicaid or tax planning purposes without the permission of the court. To obtain this permission, the guardian must go to court and ask the court’s permission to engage in the planning.
Having to return to court to obtain the court’s permission for these expanded powers costs money and takes time. It also raises the possibility that the court may not grant approval to the request.
To discuss your NJ Guardianship and Power of Attorney matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.