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Does having a legal guardian mean that a previously assigned POA is no longer valid?

Cape May, NJ |

I am from a very large family and have an adult sister with Downs syndrome who lives in NJ. Two of my other sisters currently have durable POA for financial affairs for the sister with Downs, but our family would now like to have me and two of my brothers who are closer in age to the sister with Downs become legal guardians for her. This was recommended to us by several of her doctors and her DDD case manager. If my two brothers and I became guardians for my sister, would this nullify the POA that the two other sister's currently hold? We would still like the sisters with POA to manage her day-to-day finances and have myself and my two brothers manage long-term finances (e.g., investments), living situation, etc. Is this possible?

Attorney Answers 3

Posted

Technically, the answer is no. The establishment of a guardianship does not void a power of attorney. The guardian has a right to void a power of attorney. On a practical level, certain courts will require that it be made void. However, absent language voiding a power of attorney in a guardianship judgment, a power of attorney remains alive and well.

This response does not constitute the establishment of an attorney-client relationship. It is also not to be taken as firm legal advice as such would be contingent on a full inquiry by the attorney into the complete background of the facts and circumstances surrounding this matter. The response is meant to be a helpful guide to a question in a manner which reflects the limited information provided by the inquirer.

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Posted

Thank you for your response. It was very clear and concise.

Martin L Bearg

Martin L Bearg

Posted

My esteemed colleague Mr. Begley is correct, however I have never seen a judgment appointing a legal guardian not state that all existing POAs are terminated and void. Having said that, the attorney petition for the guardianship can do one of three things, depending on the court: (1) appoint your existing sisters as guardians for handling day to day affairs (financial affairs), and you and your brothers as guardians of her person (care of her person),- this falls short of your desire to manage investments, (2) have all assets transferred to a SNT after someone has been designated the legal guardian, with the SNT (Special Needs Trust) specifying different levels of Trustees, or (3) designated one legal guardian of person and property, but the legal guardian delegate decisions to the other siblings. The problem you will face is that you want 5 or more people to manage your sister. Courts are not happy to do this because the institutions, doctors, etc. never know who has the final say and they do not want to deal with five or more people. They want to know I only need to advise sister or brother A, and get the consent of brother or sister A.

Posted

I think that the general answer to your question is yes. I would want to know 1.) How did the other siblings get POA from a person without mental capacity to sign a POA? or are they actually appointed guardians of some sort and not agents under a POA?

If a person does not have the requisite mental capacity to sign a POA they would have to have a guardian appointed so at this point, as you appear to understand, this is the only way forward. Guardianship appointments and orders of court can be molded to fit the specific situation so doing what you wish to do is very likely possible. "Typically" the guardianship would nullify the existing POA, if any, but your situation may functionally result in some "form of that POA" continuing but it'll be called a guardianship. Obviously you need legal counsel to move forward but I think you likely to get most of what you want especially if the family is amicable.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/

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Thank you for taking the time to respond.

Posted

NJ law permits a guardianship court to leave an old POA in effect, but typically the court doesn't. Consultation with guardianship counsel should be able to accomplish your objectives. I do a good deal of special needs and guardianship work and have some ideas on your concerns, but I'm pretty far from Cape May.

Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

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1 found this helpful

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2 comments

Asker

Posted

Thank you for taking the time to respond to my question.

Martin L Bearg

Martin L Bearg

Posted

Mr. Friedman, like Mr. Begley, is an excellent attorney and well respected in the area of elder and disability law.

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