Guardianship or Power of Attorney: Timing Is Everything.

There are times in our lives when we rely on our parents, become a parent, or need parental oversight.  When we are young, our parents protect us, teach us, play with us and help us grow.  When we become a parent, we do these things for our own children.  And when our parents become older, we are often called upon to take a parental role in their lives.  Sometimes our parents ask us for help; other times, we must initiate legal action to allow it.

Many people have heard the term "Power of Attorney", but few really know what it means.  It sounds so formal, almost regal.  But in reality, it is simply a document that grants authority in another to conduct business and affairs that we would do for ourselves, if we were able.  For instance, a person could be suddenly stricken with a medical condition that leaves them in a hospital, perhaps in too much pain or simply unable to pay their bills, or manage their affairs.  The Power of Attorney that that person executed will go into effect and allow their agent (friend, adult child, etc.) to pay bills, have access to bank accounts, manage, buy or sell real estate, or negotiate other business on their behalf.  The key is that the Power of Attorney was executed before the person became ill or incapacitated. 

So what happens if a person never executed such a document and now they are showing signs of dementia or Alzheimer's?  It is too late for a Power of Attorney; once a person becomes incapacitated, they lack the legal standing to draft a Will, Power of Attorney or other legal document.  A Guardianship action is now the only answer.  In simple terms, a Power of Attorney is voluntary; a Guardianship is involuntary.

We may all know someone whose parent is failing, physically and mentally.  They aren't taking care of themselves, the bills are not getting paid, or they are putting trust in strangers who are taking advantage of their vulnerable status.   When these things happen, it is time to seek Guardianship.   A Guardianship essentially strips the "incapacitated person" of their freedom and independence; that which our Constitution stands to protect.  As a result, courts take guardianship actions very seriously and will not appoint a guardian for another unless it is clear that the individual is incapacitated to the extent that they are unable to manage their affairs.  A Guardianship requires the testimony or certification of at least two physicians who have examined the individual and opined that the person lacks the ability to care for him or herself or the capacity to understand the consequences of their actions.  The Court will also appoint an attorney to represent the alleged incapacitated person to conduct an independent inquiry into the person's mental and physical condition, as well as interview and evaluate the person seeking guardianship to ensure there is no mal-intent.  The attorney will report to the court on whether the alleged incapacitated person truly needs a guardian, and whether the proposed guardian will take appropriate care of the incapacitated individual and honor the incapacitated person's wishes and desires as best as possible.    It is a process that is certainly more expensive than a Power of Attorney, and can take 6-12 weeks, on average, to complete.

When I interview a client, I always inquire whether they have a Will and a Power of Attorney.  There is simply no reason not to have both documents.  If you or someone you know is approaching a point in life when help may be necessary, schedule an appointment with a lawyer.  Preparing a Power of Attorney now will save time and money down the road for yourself and your family. 

For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.  I look forward to working on your behalf.

Stephanie Pedrick

Changing a Child's Surname Might Be Easier, Or Harder, Than You Expect

            Have you recently been divorced, and now think you might like to change your child’s last name?  Were you and your child’s other parent never married, but your child’s last name is different than yours?  Maybe you’d like to change it now?   Either way, you need to know the legal standard that our court’s employ.

Since 1995, and the case of Gubernat v. Deremer[1] New Jersey courts have held that when parents who are not raising a child together (such as divorced parents or parents who were never married), do not agree about the child’s name, the court must resolve the dispute under the “best-interest-of-the-child” standard with a strong presumption that the name selected by the “custodial parent” is in the child’s best interest.   Does this mean that the custodial parent can change a 7 year old child’s name simply by choice?  No – it’s never that simple.  The strong presumption in favor of the custodial parent’s choice is not irrefutable.  Evidence that the child has used the other parent’s name for a period of time; or that the child has a level of comfort with a certain name can serve to weaken the custodial parent’s choice.  Our courts will scrupulously examine all factors relevant to the best interest of the child; including the length of time the child used one surname, the identification of the child as a member of a family unit, the potential anxiety or embarrassment a child might experience if their surname is different from the custodial parent and any preference the child might express, if sufficiently mature. 

Recently, one panel of the Appellate Division, distinguished the presumption established by the Gubernat case, and held that the presumption in favor of the custodial parent’s choice does not apply to children born to married parents.  In other words, the choice of the custodial parent of a child born out of wedlock is entitled to greater deference than the choice of the custodial parent who was divorced from the child’s non-custodial parent.  The reason given for the distinction is that a child born “in wedlock” was originally named by a marital partnership with the intent that the designation remain permanent.   Just this week, however, on March 6, 2012, another panel of the Appellate Division declined to adopt such a view, and reiterated the standard of Gubernat, that the custodial parent’s choice is presumed to be in the child’s best interest, regardless of whether the child was born “in” or “out” of wedlock. 

It is interesting to note however, that both recent cases commented that consideration should perhaps be given to the parties’ settlement agreement (if one exists).   For if the parties expressed a position in a written agreement regarding the child’s name, then the standards for enforcement of an agreement, or modification because of changed circumstances, might apply.  These comments suggest that our courts will continue to address this issue, and perhaps further define the standard to employ in name change situations.

For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.

Stephanie Pedrick

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[1] 140 N.J. 120 (1995)