Legal Question in Wills and Trusts in New Jersey

Guardianship of Mental Incompetent

Background: Only one parent living. Declared mentally incompetent by Court. Temporary personal guardian and permanent financial guardian appointed. No will exists. Several related issues/questions: One sibling had Power of Attorney for parent on some accounts, and joint ownership on others. Was gifting to other siblings from parent's assets illegal? If siblings did not receive equal gifts, is this illegal or undoable by the Court? (Total amt of gifts was less than 18% of estate value at the time, and parent has failing health but living at home w/ sister.) What is impact of NJ "In Re Trott" case? Sister withdrew approx 20% of assets for herself in a few month period just after she took parent to see lawyer about having parent declared incompetent. Lawyer advised can't do a will. Is sister likely guilty of fraud? Recoupable? (Funds were NOT used for parent.) Can financial guardian gift out a certain amt of estate in order to avoid state and inheritance taxes?


Asked on 3/16/99, 9:32 pm

1 Answer from Attorneys
Robert Gleaner Robert A. Gleaner, P.C.

Re: Guardianship of Mental Incompetent

This is a very complicated question and very fact sensitive. In general, a person who acts under a Power of Attorney is obligated to act as a fiduciary and may be liable if he/she cannot account for monies spent and being able to establish that it was spent for the benefit of the person who named him/her as the attorney. You need to sit down with a lawyer and present the entire matter to him/her before an appropriate response can be given. Good luck!

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Answered on 5/19/99, 11:51 pm


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