Don’t worry, Jay Leno is still alive! Although he is no longer hosting his famous late night TV show, last year Leno made the news when we sought a conservatorship for his wife, who had been suffering from dementia and had not properly planned. In New Jersey, this would have been a guardianship proceeding, but the concepts are substantially the same.
In the conservatorship, Leno asked the court to appoint him as his wife’s conservator, so that he would then be able to make financial decisions on her behalf. (No—spouses do not automatically have that ability for one another!)
At Leno’s request, the court granted Leno the authority to act as Mavis’s conservator. Although Leno’s appointment as conservator for his wife was uncontested and seemingly straightforward, the details of Mavis’s condition and the fact that Leno had to file for conservatorship became known to the public. Leno began obtaining doctor’s certifications in support of his petition to the court in 2023, filed his petition in January 2024, and a decision was not rendered by the court until April 2024. During that time, no one was legally authorized to handle any of Mavis’ financial affairs. In New Jersey, this timeline can be much longer.
In most cases, a conservatorship or guardianship can be avoided entirely if an individual has the proper Power of Attorney (“POA”) documents in place. With a POA, a competent adult can appoint the person that they wish to be their Agent for financial and health care decisions. Your spouse or other next of kin do not have an automatic right to make financial and/or medical decisions for you without legal documentation, such as a POA. If an account is jointly owned by two people, then it is true that both owners can individually make financial decisions as to that account. However, if you have assets in your individual name, not even a spouse can act on your behalf without a legal document specifically allowing them to do so. This is the case with individual retirement accounts, which, by their very nature, do not have more than one owner. For real estate, if two people own the property jointly, both owners’ signatures are required to sell or transfer the property, so if one owner does not have the cognitive ability to enter into a sale and sign the deed, the property cannot be sold unless another person has the legal authority to sign for such person.
To avoid the hassle and the significant cost and delay of pursuing a guardianship through the court, as Jay Leno had to do for Mavis, it is imperative that you ensure you have the proper financial and health care POAs in place while you have a sound mind to execute such documents. These documents are relatively easy and inexpensive to put in place and allow you to choose—not a court—who will act on your behalf.
If you would like to discuss establishing an estate plan for the first time, including powers of attorney, or if you have documents in place but think that they need an update, please call our office at 856-489-8388 or visit our website at fendrickmorganlaw.com to schedule an appointment.
