When planning for your future or that of a loved one, it’s important to know the difference between guardianship vs. power of attorney in New Jersey. These are both legal tools for planning or when it’s necessary to manage the affairs and daily needs of someone who can’t do it themselves.
At Weisberg & Klauber, LLC, our attorneys have decades of experience on both sides of the courtroom, providing clients with skilled legal representation and advice. We can handle the guardianship process and determine if guardianship or power of attorney is needed.
Guardianship and Power of Attorney: Key Differences
This previous work experience has helped him gain insider knowledge of how insurance companies operate and the tactics they use during automobile accident cases, an advantage that also benefits his work as a New Jersey guardianship lawyer. He uses this knowledge to help influence his personal injury cases and to resolve insurance claims.
The important differences between the two include the following:
- You don’t choose the person who becomes a guardian. Guardianship is appointed by the court after someone can no longer make decisions.
- You choose the person to give power of attorney to while you are still capable of making decisions.
- Power of attorney is more flexible than guardianship.
- Guardianship requires oversight. Since it is appointed by the court, the state oversees the guardianship to make sure it is being carried out according to the terms.
Understanding Power of Attorney and When It Is Needed
Designating someone to have a power of attorney is an important part of estate planning. Whether you live on the Jersey Shore or anywhere else in New Jersey, it’s done while you are capable. A durable power of attorney must be prepared before you become incapacitated, or it may not be valid. There are several types of power of attorney, including:
- Durable power of attorney
- Financial power of attorney
- Healthcare power of attorney
A power of attorney is the better choice if you or your loved one understands what they are doing and wants to plan ahead. It is also the better choice if you want to avoid involving the court, and you and your family agree on who should be assigned as the agent.
Understanding Guardianship and When It Is Needed
Guardianship often becomes necessary when a family member cannot take care of themselves. About 2,900 guardianship petitions are filed each year in New Jersey. It could be because of age, an illness, or an injury. Situations where guardianship may be necessary include the following:
- A person suddenly becomes incapacitated, and they don’t have a power of attorney document in place.
- The incapacitated individual has a power of attorney, but it doesn’t cover all the types of decisions that have to be made.
- An existing power of attorney is being misused or abused.
- Family members can’t agree about care decisions.
- One or more financial institutions may not honor a power of attorney.
It’s important to consider that, when a guardian is appointed, the ward loses a significant number of rights. It is more restrictive than a power of attorney and more difficult to modify after it is in place.
The Guardianship Process
The process of obtaining guardianship is more complicated than that of a power of attorney. It includes:
- Petitioning the court. An attorney can assist with this process.
- Medical evaluation. In most cases, the court requires two evaluations. At least one must be done by a medical doctor, and another can be done by either a psychiatrist or another doctor.
- Serve notice to the interested parties. Notice must be provided to the ward, their relatives, and other interested parties.
- Court hearing. At the hearing, the evidence is reviewed, the proposed guardian is evaluated, and a determination is made.
Hire a Guardianship Lawyer
If you are considering obtaining guardianship over a family member, or you’re not sure whether you need guardianship or power of attorney, it’s important to hire a guardianship lawyer to guide you through the process.
An attorney can determine if you should establish guardianship or if you have a power of attorney case.
FAQs
Is It Better to Have a Power of Attorney or Guardianship?
Whether it’s better to have a power of attorney or guardianship depends on the situation. A power of attorney costs less to set up, but it can’t be done if the person who needs it is already incapacitated. If you want more control and privacy, a power of attorney is the better choice, as it can be revoked as long as the person is still capable.
Can You Get a Power of Attorney for Someone With Schizophrenia?
You can get power of attorney for someone with schizophrenia, but only if they still have the legal capacity to understand what they are signing and the implications of such a document. It’s important to consult a lawyer who is familiar with New Jersey power of attorney laws. They can use the correct language in the document and meet all the legal considerations in your case.
Does a Power of Attorney Override a Guardianship?
A power of attorney does not override a guardianship. In most cases, a guardianship overrides a power of attorney. A POA is a private agreement; since a guardianship is appointed by and deemed necessary by the court, it has more power than a power of attorney, which often only covers specific tasks.
How Long Does a Guardianship Case Take in New Jersey?
The time it takes to have a guardian appointed by the court in New Jersey depends on the case. An uncontested case takes several weeks, while a contested case may take months. If it is an emergency guardianship, which is typically temporary, the appointment can occur in just a few days. It’s important to consult an attorney familiar with guardianship laws to help with the process.
Contact a Guardianship Lawyer
Determining whether you should set up a guardianship, power of attorney, or both can be a difficult decision. It is a complex area of law that requires experience and knowledge. You don’t have to make these decisions alone. Contact Weisberg & Klauber, LLC, today for a consultation. We can discuss your case and what you and your family need.
