Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Abuse Attorney
WHY AND WHEN SHOULD A GUARDIANSHIP OR CONSERVATORSHIP ACTION BE TAKEN
Where someone has personally misappropriated assets, either directly as a power of attorney, or through the misuse of jointly titled accounts, etc., a guardianship proceeding can provide a legal means to recover the assets. In addition, a guardianship action can restore the original beneficiary designations to the person’s financial accounts and return everything to the status quo. In cases where a person has caused an incapacitated person’s estate plan to be altered, a guardianship proceeding can be helpful in gathering evidence of undue influence and other legal causes of action to rectify the wrong doing.
Besides the economic considerations involved when filing for guardianship it may be equally necessary (on an emergent basis), to take protective action where there exists substantial elder abuse involving physical or psychological harm. In these types of cases, the alleged incapacitated person may or may not be able to acknowledge the abuse or is unable to stop the abuse without outside assistance.
TO LEARN MORE ABOUT THE PROTECTIVE ACTIONS YOU CAN TAKE WHEN ALLEGED ELDER FINANCIAL ABUSE IS SUSPECTED, PLEASE VISIT OUR COMPANION SITES AT: www.newjerseyguardianshipattorney.com; or www.powerofattorneylawyerinnj.com.
There are generally warning signs virtually all of us can recognize that alert us to the fact “something isn’t right”. When something isn’t right with an elderly person it often means deteriorating health and/or vulnerability to the influence of others. The outcomes are tragic, often heartbreaking, and many times sad. So let’s take a look at the warning signs of elder abuse. If you recognize any of these, consider calling me today. Time is not your friend, or that of the elderly victim.
If you answer these questions “yes” or “probably” then you have elder financial abuse right in front of you. It’s time to act!
A power of attorney drafted after January 28, 2004 cannot be interpreted to authorize the attorney-in-fact or another to make a gift(s) unless the power of attorney expressly authorizes such gifts. Moreover, a statement in a power of attorney authorizing the agent to generally perform all acts the principal could perform is not an authorization to make gratuitous transfers.
GIFTS BETWEEN A GUARDIAN AND HIS OR HER WARD
A very strong presumption exists against the validity of a gift(s) made between an incapacitated person to his or her guardian or power of attorney. The law places a heavy burden on the fiduciary to show the absence of undue influence, diminished capacity and other factors which may adversely impact the gift being made voluntarily. If a gift is being contemplated, it is strongly suggested that careful planning and proof of independent and voluntary decision making by the ward be established. If “gifts” have already been made and you consider yourself to be the victim of a predatory guardian that has deprived you of the value of your property, you should immediately contact us. Chances are we can successfully challenge it.
A guardianship proceeding often is considered a “last ditch measure” to protect an alleged incapacitated person who is in need of assistance in making financial, legal, medical and other decisions. It can and often is used as a sword or a shield to gain an advantage over other interested parties as well as the alleged incapacitated person. What are the risks and benefits to the person bringing the guardianship action? To better understand the answer to this question, I want you to visit our website www.newjerseyguardianshipattorney.com to learn the ins and outs of this topic (click here).
Have questions or a case involving elder financial abuse in New Jersey by a guardian, power of attorney or an abusive person, contact Fredrick P. Niemann, a NJ elder abuse and financial abuse law attorney toll-free at
(855) 376-5291 or email him at email@example.com
He will sit and discuss your particular case and help you evaluate whether an actionable case of elder abuse exists.