Legal Question in Wills and Trusts in New Jersey

Re: Childless widow in nursing home declared incompetent

If she's incompetent, there would be a guardianship hearing to determine this. If she was adjudicated incompetent by the Court, a guardian would be appointed to manage her affairs. The guardian is often a close relative or perhaps someone she previously named under a power of attorney (her "attorney-in-fact").

If there was no logical choice for guardian or if the relatives could not agree, the Court will likely appoint a guardian (this could be a professional guardian or perhaps an attorney).

Once appointed, the guardian would have authority to pay her bills, including nursing home fees. The guardian would likely need court approval to sell her house.

It is important to verify that she's intestate (i.e. does not have a Will). If she does have a Will, it should be reviewed carefully.

Re: Childless widow in nursing home declared incompetent

Closest living relative has the first option to be appointed for her. Unless she has granted a full durable power of attorney, health directive and other documents, the ability of her guardian will be limited to what the statutes and Courts permit, which is usally less than full discretionary ability to deal with her assets. If she is currently competent, I suggest getting her to an attorney immediately to have these documents prepared, and so she can name a responsible person to be her proxy. You should know that there are levels of incapacity, and because she may not be able to care for herself, she still could be sufficiently competent to create these documents. She should also consider doing some pre-nursing home planning for both estate planning (nephews are charged the highest NJ inheritance rates) and possibly medicaid planning to conserve some assets in the event she has to be admitted. If you need suggestions, advice or assistance, contact me and I can assist you.