Home
In this issue

Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review June 5, 2006 / 8 Sivan, 5766

Nephew wants guardian rights

By Jan L. Warner & Jan Collins


Printer Friendly Version
Email this article

http://www.JewishWorldReview.com | Q: My uncle, 82, lives in a nursing home with his wife, 79. He is my deceased father's brother. They have two adult children who both live in the vicinity, but neither has done anything to help with their care since they started becoming feeble and needing help a couple of years ago.

Because my uncle and aunt knew we would assist them, they have always called on me and my wife. Last year, before they entered the nursing home, they both signed powers of attorney appointing my wife and me to take care of their finances and health decisions for them. They did this through their own lawyer, and my wife and I did not know about it until after they had signed.

My wife and I have been taking care of their affairs for these past months without any objection until recently, when we were accosted by one of their children, who accused us in front of the nursing-home staff of stealing their parents' money and taking advantage of them. Next thing we knew, we were sued by both children. They asked the court to stop us from taking care of their parents and to appoint them as guardians.

We were shocked and at first decided that it wasn't worth the struggle, but my uncle and aunt had begged us not to let their children take over, so my wife and I decided to talk to a lawyer. He told us that it was up to the court to decide who would be appointed. We are not wealthy people and would like to know how the lawyer's bills get paid and what kind of chances we have — things the lawyer did not address.

A: Because the laws on this subject vary from state to state and because we are not in the business of giving legal advice, we will provide you with a general overview of what the rules appear to be in most states.

While the probate (or surrogate) court is vested with broad discretion in making appointments for incapacitated people, the ultimate determining factor in appointing a guardian (or conservator, in some states) is the best interests of the incapacitated person or ward.

Donate to JWR

That said, each state legislature has enacted laws under which priorities for appointment are established. So long as the court finds no reason for disqualification, the first priority is the person who has been nominated by the incapacitated person to serve in this fiduciary capacity. Since properly drafted powers of attorney should contain language by which the signer nominates the attorney-in-fact to be the guardian (and/or conservator), should a proceeding be brought, your lawyer should first look to the language of the powers of attorney to see if such a nomination is included.

If not, generally speaking, the second priority goes to the person who has been appointed as attorney-in-fact under a durable power of attorney — which appears to be you and your wife so long as your aunt and uncle had capacity to sign the durable powers of attorney. The spouse is generally third in priority, and adult children fourth.

Assuming all the facts you recite are true, and assuming the powers of attorney are valid, it would appear that you and your wife have priority and should not be ousted unless evidence is presented to the court that you should be disqualified. As to payment of the lawyer, properly prepared powers of attorney should contain language allowing you, as agent, to hire an attorney. Some powers of attorney specifically provide for the hiring of counsel to defend actions such as this.

Your lawyer should review the power of attorney and give you an opinion since, if you are required to spend money to protect your wards, you should be reimbursed if you are successful in the litigation.

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.

Archives

© 2006, Jan Warner

Columnists

Toons

Lifestyles