What would happen if someone who you don’t know—or someone you do—decides you are not competent and tries to become your legal guardian? Could it happen?
The concept of guardianship for a senior is a difficult thing to consider. Maintaining your independence and remaining in charge of your own life would be at risk, if someone wanted to become your legal guardian, says nj.com , “Worried someone may want to be your guardian? Here's what you need to know.”
Let’s start by understanding what guardianship is, and how it works.
Guardians are appointed by a judge, for both minors and incapacitated individuals. An application is required to be made to the court in the state and county where the minor or alleged incapacitated person lives or where his or her property is located. In either situation, once the minor becomes 18, she receives the property. If the incapacitated person returns to full or partial competency, the court (upon application) may restore that person’s rights, which would dismiss or limit the guardianship.
A guardianship can be of the person. This is limited to making medical or similar decisions on an incapacitated person’s behalf, or concerning the person's property, or both. A guardianship can also be limited. This means that the guardian is appointed to only make certain decisions, like financial ones. A guardianship can also be plenary, which means the guardian can be appointed to address all issues.
When a guardian of an individual's property is appointed, the property is usually re-titled into the name of the guardian for the benefit of the incapacitated individual. This gives third parties notice of the guardianship.
In New Jersey, prior to an individual being appointed as the guardian of an alleged incapacitated person, that person has to be given notice of the proceedings. That person is also appointed an attorney by the court to advocate for them or to report to the court on their situation. Therefore, a senior would be given notice and legal representation.
The records of these types of proceedings aren’t open to the public, because of the confidential information in them, like certifications from physicians on the physical and mental condition of the alleged incapacitated person.
But, information on the name of the guardian who has been appointed to represent the incapacitated person should be available, so that third parties, including creditors, can know who to contact if they are providing good or services to that person.
Speak with an estate planning or elder law attorney, if you are concerned that someone may be considering applying for guardianship for you. They’ll know how to find out if this is true, and how you can protect yourself.
Reference: nj.com (August 24, 2018) “Worried someone may want to be your guardian? Here's what you need to know”