by Jose D. Roman | Oct 20, 2026 | Estate Planning, Last Will and Testament, Living Will, Power of Attorney, Trusts, Uncategorized
If you have attended a free dinner seminar on estate planning, you have heard the pitch. Probate is a nightmare, the government is coming for your house, and the only thing standing between your family and financial ruin is a revocable living trust — available tonight at a special seminar price.
Here is the honest answer I give my clients: a revocable living trust is a genuinely useful tool, but in New Jersey it is oversold. Whether you need one depends entirely on your situation, and most of what the seminars claim is either exaggerated or flatly wrong.
What a Revocable Living Trust Actually Is
A revocable living trust is a legal arrangement you create during your lifetime. You transfer your assets — house, bank accounts, investments — into the trust and name yourself trustee. You keep complete control: you can spend the money, sell the property, change the terms, or revoke the whole thing whenever you want. Under N.J.S.A. 3B:31-43(a), a New Jersey trust is revocable unless its terms expressly say otherwise.
When you die, your chosen successor trustee steps in and distributes everything per your instructions, with no court proceeding for the assets actually in the trust. For income tax purposes, the IRS pretends the trust does not exist while you are alive — a revocable trust is a grantor trust, so all income is taxed to you exactly as if you still held everything in your own name.
Does a Revocable Trust Save You Meaningful Probate Costs in New Jersey?
The number one selling point is probate avoidance. In some states that warning has real teeth. In New Jersey, it mostly does not. I have written in detail about what probate actually looks like here: for a typical uncontested estate, it is an administrative process through the county Surrogate's Court, with typical government filing fees and costs, and no courtroom appearance required. Attorney fees are not set by a statutory percentage the way they are in California or Florida.
So when a trust is marketed to you mainly as New Jersey probate avoidance, ask what problem is actually being solved — for many families, that probate was never going to be expensive. Avoiding probate may have some value, but it is one benefit among several, and it should not be the whole sales pitch.
Does a Revocable Trust Save You Taxes?
This is where the seminar pitch falls apart for New Jersey residents. A revocable living trust does not reduce your taxes — not federal, not state.
New Jersey repealed its estate tax for individuals who died on or after January 1, 2018. There is nothing left for a trust to avoid. The New Jersey inheritance tax, on the other hand, is very much alive — and a revocable trust does nothing to escape it. Because you keep the power to revoke, the state treats the trust property as a transfer taking effect at your death, taxable under N.J.S.A. 54:34-1(c). The tax depends on who receives the assets, not on whether they passed through probate or a trust. Transfers to a spouse, children, parents, and other Class A beneficiaries are exempt either way; transfers to more distant relatives are taxed either way. The trust changes the mechanics, not the tax bill.
Does a Revocable Trust Protect Your Assets?
Because you can revoke the trust and take everything back at any time, your creditors can reach the assets too — a court can simply order you to revoke it. If creditor protection is your goal, a revocable trust provides none.
The same logic applies to Medicaid, and this is the version I see most often. New Jersey's Medicaid rules are explicit: for a revocable trust, the entire corpus counts as a resource available to you (N.J.A.C. 10:71-4.11(e)1.i). Every dollar in the trust counts toward the $2,000 resource limit. Putting your house into a revocable living trust does absolutely nothing for Medicaid eligibility. If sheltering assets from long-term care costs is the objective, that requires an irrevocable trust under completely different rules, including the five-year lookback.
What It Actually Does Well
With the myths cleared away, here is what the trust genuinely offers. First, privacy: probate is a public process and your will becomes a public record, while a trust is administered privately by your successor trustee. Second, out-of-state property: a Florida vacation home or Pennsylvania condo held in the trust avoids a separate probate proceeding in each of those states.
Third, incapacity planning. Your successor trustee can step in and manage trust assets without court involvement — but only for assets actually in the trust. Property left outside it may still require a guardianship proceeding, and a court-appointed guardian can, with court approval, exercise your powers over the trust itself. A trust is a strong incapacity tool, but it does not replace a durable power of attorney or healthcare documents. As noted above, it also does not help an incapacitated person qualify for long-term care Medicaid.
Fourth, control over distributions. You can keep a minor child's inheritance in trust until an age you choose, and in a blended family you can provide for a surviving spouse for life while preserving the remainder for your children. One caution: if a beneficiary has a disability and receives means-tested benefits, a standard revocable trust can disqualify them — that situation calls for a special needs trust, a different instrument.
The Step Everyone Skips: Funding the Trust
The failure I see more than any other: someone pays several thousand dollars for a beautiful trust document, takes it home, puts it in a drawer, and never funds it. A trust only controls the assets you actually transfer into it — the house needs a new deed, the accounts need retitling, and each transfer takes paperwork.
An unfunded trust is an expensive stack of paper. Assets left outside it go through probate exactly as if the trust did not exist, which means the client paid for probate avoidance and got probate anyway. If you create a trust, fund it promptly and completely, and review it whenever you acquire significant new assets. Treat funding as part of the engagement, not homework for later.
When I Tell Clients Yes — and When I Tell Them No
I recommend a revocable living trust without hesitation for clients who own real estate in another state, have strong privacy concerns, want incapacity planning beyond a power of attorney, have minor children with significant assets, or are navigating a blended family.
I talk clients out of one just as often. If your estate is straightforward — a New Jersey home, bank and investment accounts, everything going to your spouse and then your children — a well-drafted will, current beneficiary designations, and payable-on-death designations accomplish essentially everything a trust would, at a fraction of the cost. A properly drafted and funded trust typically runs several thousand dollars. Spending that to solve a problem you do not have is not planning.
The Bottom Line
A revocable living trust is a tool, not a magic wand that solves all potential problems. It does not cut your taxes, does not protect assets from creditors or Medicaid, and in New Jersey it does not buy the dramatic probate savings the seminars may advertise. What it does buy — privacy, control over distributions, incapacity planning, and multi-state simplicity — is genuinely valuable for the right family. The right question was never "should I get a living trust." It is "what problem am I trying to solve." If the answers involve privacy, out-of-state property, minor children, a blended/second family, or incapacity, a trust may be exactly right. If they involve taxes, asset protection, or fear of New Jersey probate, you are being sold a solution to a problem you do not have — and the documents you actually need are a current will, a durable power of attorney, a healthcare proxy, and a living will. Before you sign anything at a seminar, talk to an attorney who asks about your family first and reaches for a product second.
by Jose D. Roman | Sep 15, 2026 | Estate Planning, Guardianship, Living Will, Power of Attorney
Many people believe that if a loved one has moments of clarity after being declared incapacitated, they can simply sign a new advance directive, health care proxy, or other planning document. New Jersey law is more complicated.
The case In re Roche, 296 N.J. Super. 583 (Ch. Div. 1996), addresses an important question: Can a person who has already been adjudicated incapacitated and placed under guardianship execute a valid advance directive? The court's answer was no. However, the court also recognized that the person's wishes still matter and may continue to influence future medical decisions.
For New Jersey families, the decision highlights the importance of completing estate planning and incapacity planning documents before a guardianship proceeding becomes necessary.
The Facts of In re Roche
Clementine Roche had been adjudicated incapacitated in 1993 due to dementia, and the Public Guardian for Elderly Adults was appointed as her guardian. While residing in a nursing home, Ms. Roche discussed her medical wishes with representatives of the Public Guardian's Office. She indicated that she did not want CPR or artificial nutrition and hydration through feeding tubes under any circumstances.
In 1995, she signed what purported to be an advance directive reflecting those wishes. Medical professionals and guardian representatives believed she understood the nature and consequences of the document at the time she signed it. The guardian then asked the court to determine whether the advance directive was valid and binding. If not, the guardian sought guidance on what weight should be given to the document in future medical decision-making.
The Court's Holding
The court held that a person who has already been adjudicated incapacitated cannot execute a valid advance directive under New Jersey's Advance Directives for Health Care Act. The statute permits a competent adult to execute an advance directive, and the court concluded that the Legislature intended advance directives to be created before a loss of decision-making capacity occurs.
As the court explained, once a person has been adjudicated incapacitated and remains subject to a guardianship, it is too late to create a legally enforceable advance directive under the statute.
At the same time, the court rejected the idea that the document should simply be ignored. Even though the advance directive was not legally valid, it could still be considered evidence of Ms. Roche's wishes and subjective intent when her guardian later faced medical decisions on her behalf.
The Right of Self-Determination Does Not Disappear
One of the most important aspects of Roche is its recognition that incapacitated persons retain a right of self-determination.
Building on earlier New Jersey cases such as In re Conroy and In re M.R., the court emphasized that incapacitated individuals have the same fundamental right to bodily integrity and medical self-determination as competent persons. The difference is that once a person lacks legal capacity, those rights must be exercised through substitute decision-makers and balanced against the individual's best interests.
In other words, guardians do not supplant the person's wishes. Rather, guardians are expected, whenever possible, to determine what the incapacitated person would have chosen if competent and make decisions using a substituted-judgment analysis. Evidence of those wishes can come from conversations, religious beliefs, prior conduct, powers of attorney, living wills, and similar expressions of intent.
For a broader discussion of medical decision-making rights in New Jersey, see my article on the right to refuse medical treatment in New Jersey.
The Practical Impact on Powers of Attorney and Other Planning Documents
Although Roche specifically involved an advance directive, the decision illustrates a broader practical concern. Once a court has adjudicated a person incapacitated and appointed a guardian, the individual's ability to execute new legal documents becomes significantly more complicated.
Whether a will, power of attorney, trust amendment, deed, or other document may be validly executed depends on the nature and scope of the guardianship order, the person's remaining capacity, and, in some situations, court involvement. Although Roche addressed an advance directive rather than a power of attorney, the case demonstrates how a judicial declaration of incapacity can significantly affect an individual's ability to engage in future legal planning.
This is one reason why proactive planning is so critical. Advance directives and powers of attorney are generally most effective when executed before cognitive decline leads to guardianship litigation.
Why Roche Still Matters Today
Nearly three decades after it was decided, In re Roche remains a useful reminder that incapacity planning works best when completed early.
The case reinforces two important principles. First, New Jersey's advance directive statute is designed for competent adults planning ahead for a future loss of capacity. Second, even after a guardianship is established, an incapacitated person's expressed wishes remain relevant and should be considered when guardians make health care decisions.
Families facing capacity concerns should therefore act promptly. Waiting until after a guardianship has been established may eliminate the ability to create certain legally enforceable planning documents, even when the individual appears capable of expressing thoughtful preferences.
If you are dealing with questions concerning incapacity, guardianship, or medical decision-making, you may also find my article on guardians ad litem and mental capacity in New Jersey helpful.
by Jose D. Roman | Sep 8, 2026 | Estate Planning, Guardianship, Living Will, Power of Attorney
New Jersey has long been a national leader in recognizing a person's right to decide what medical treatment they do and do not want. That right includes the ability to refuse life-sustaining treatment, even when refusing treatment may result in death. Although these cases often arise in heartbreaking circumstances, the legal principle is straightforward: medical treatment generally requires the patient's consent.
The right to refuse treatment is rooted in both personal autonomy and constitutional principles. New Jersey courts have recognized that competent adults have a fundamental right to make decisions about their own medical care, including the decision to decline treatment. The New Jersey Legislature later incorporated those principles into the New Jersey Advance Directives for Health Care Act, which expressly recognizes an individual's right to accept, reject, or discontinue medical treatment and to appoint another person to make decisions when the individual can no longer do so.
The Constitutional Basis for the Right to Refuse Treatment
New Jersey's modern law on refusing life-sustaining treatment began with the 1976 case of In re Quinlan. In that case, twenty-one-year-old Karen Ann Quinlan suffered severe brain damage and entered a persistent vegetative state. Her father sought authority to remove her from a ventilator after physicians concluded there was no realistic hope of recovery. The New Jersey Supreme Court held that an individual's constitutional right of privacy included the right to decline extraordinary life-sustaining treatment and that a guardian could assert that right for an incompetent patient under appropriate circumstances.
The United States Supreme Court later reached a similar conclusion in Cruzan v. Director, Missouri Department of Health. Nancy Cruzan was left in a persistent vegetative state following an automobile accident. The Court recognized that competent individuals have a constitutionally protected liberty interest under the Due Process Clause to refuse unwanted medical treatment. However, the Court also held that states may require reliable evidence of an incompetent patient's wishes before life-sustaining treatment is withdrawn. The decision helped spur the widespread use of living wills and health care powers of attorney across the country.
Conroy: Extending the Right Beyond Ventilators
In 1985 the New Jersey Supreme Court significantly expanded these principles in In re Conroy. Claire Conroy was an elderly nursing home resident suffering from severe, irreversible physical and cognitive impairments. The dispute involved whether artificial nutrition and hydration delivered through a feeding tube could be withdrawn.
The Court held that artificially provided nutrition and hydration constitute medical treatment and may be withdrawn under appropriate circumstances. More importantly, the Court established several decision-making standards for incompetent patients who had not left clear instructions. These standards focused on determining what the patient would have wanted and, in some circumstances, whether the burdens of treatment so outweighed its benefits that continuing treatment would be inappropriate even without clear evidence of the patient's wishes.
Today, Conroy remains one of New Jersey's most important end-of-life cases because it emphasized that the goal is not what family members, judges, or physicians want, but what the patient would have chosen.
Jobes: The Importance of Family and Substituted Judgment
In Matter of Jobes, the New Jersey Supreme Court addressed the case of a young woman who had remained in a persistent vegetative state for years following surgical complications. Her husband and family sought withdrawal of artificial nutrition and hydration.
The Court reaffirmed that the right to refuse life-sustaining treatment extends to incompetent patients. It also emphasized the role of close family members in applying a substituted judgment analysis, meaning an effort to determine what the patient would have chosen if able to decide. The Court ultimately allowed withdrawal of the feeding tube based upon evidence concerning the patient's values and wishes. Together, Quinlan, Conroy, and Jobes firmly established New Jersey's recognition of patient autonomy, even after a person loses decision-making capacity.
The Difference Between a Guardian and a Health Care Agent
Many people assume that a family member automatically gains authority to make medical decisions. That is not always true.
A person may designate a health care representative through an advance directive or medical power of attorney. Once the individual loses capacity, the representative gains legal authority to make health care decisions, including decisions about life-sustaining treatment, subject to the terms of the directive and the patient's known wishes. New Jersey law directs the representative to follow the patient's instructions whenever known.
A guardian, by contrast, receives authority from a court. Guardianship becomes necessary when a person has lost capacity and did not execute valid planning documents. If you would like to learn more about guardianship proceedings, see my articles on New Jersey guardianship, contested guardianship hearings, and who makes medical decisions in New Jersey.
Even a guardian's authority is not unlimited. A guardian is not free to substitute the guardian's personal beliefs for the ward's wishes. Instead, the guardian must attempt to make the decision the ward would have made based on the ward's values, statements, religious beliefs, and prior directives. The courts repeatedly emphasize that the patient's autonomy remains the central concern.
Must a Guardian or Agent Follow an Advance Directive?
Generally, yes.
Under New Jersey law, an advance directive is designed to preserve the patient's voice after incapacity occurs. A health care representative is expected to make decisions in accordance with the patient's instructions and known wishes. Only when the patient's preferences are unknown should the representative turn to a best-interests analysis.
Likewise, a guardian ordinarily must honor a valid advance directive. A court-appointed guardian does not gain the authority to rewrite the ward's prior decisions. The advance directive remains powerful evidence of the patient's wishes and usually controls medical decision-making.
There is one important qualification. New Jersey law provides that if an incapacitated patient clearly expresses a contemporaneous desire to receive life-sustaining treatment, that expressed wish can take precedence over an earlier contrary instruction in an advance directive.
Why Advance Directives Matter
The lesson from Quinlan, Conroy, Jobes, and Cruzan is that New Jersey law places tremendous importance on an individual's own choices. When a person's wishes are clearly documented, courts, physicians, guardians, and family members are far more likely to reach decisions consistent with those wishes.
An advance directive allows you to state what treatments you would accept or refuse and designate a trusted person to speak on your behalf. Without those documents, loved ones may face uncertainty, family disputes, guardianship proceedings, or court involvement at a time that is already emotionally difficult.
New Jersey law recognizes that the decision to undergo or refuse medical treatment belongs first and foremost to the individual. The best way to ensure your voice is heard is to make your wishes known before a crisis occurs.
by Jose D. Roman | Aug 11, 2026 | Estate Planning, Guardianship, Legal Bulletin, Living Will, NJ Supreme Court, Power of Attorney
A 2020 New Jersey Supreme Court decision, S.T. v. 1515 Broad Street, LLC, 241 N.J. 257 (2020), raises a question that matters far beyond the personal injury lawsuit at its center: how much evidence does it take before a court can take away an adult's right to control her own affairs? The answer, the Court held, is a great deal — and the procedures required to get there are not optional.
The case is also a reminder of something that even lawyers sometimes forget - - you have the right to make what may seem like an objectively bad decision. A choice that looks unwise to a lawyer or a judge is not, by itself, evidence of incapacity.
What Happened to S.T.
S.T. was a forty-four-year-old chemical engineer, a Vietnamese refugee who had served in the U.S. Army and earned advanced degrees in engineering and environmental science. In 2008, she was struck on the head by a metal plate that fell from a doorway as she exited her office building in Bloomfield. The injury was serious. The Social Security Administration declared her permanently disabled within a year. Over the following years, she was diagnosed with post-concussion syndrome, major depressive disorder, cognitive impairment, and related conditions — all found to be permanent and causally related to the accident. She made more than 500 visits to healthcare providers.
She filed a personal injury lawsuit against the building owner and others. During the litigation, the defendants made an offer of judgment for $475,000. S.T. rejected it, against the advice of her attorney, who believed the offer was in her best interest given the challenges in proving her case.
Rather than accept her decision, S.T.'s own attorney filed a motion to have a guardian ad litem appointed to determine whether she had the mental capacity to make litigation decisions. He did not copy S.T. on the motion. The court appointed one without giving S.T. notice or a hearing. The guardian ad litem investigated, concluded S.T. lacked the capacity to decide whether to settle or go to trial, and was then granted the authority by the court to make that decision for her. A $625,000 settlement was reached — without S.T.'s consent. She appeared at the final hearing and objected forcefully, comparing the forced settlement to a life sentence. The court approved it anyway.
The Appellate Division affirmed. The New Jersey Supreme Court reversed.
Guardian Ad Litem vs. Legal Guardian: A Critical Distinction
The trial court's core mistake was treating the role of a legal guardian and guardian ad litem as interchangeable. They are not, and the difference is legally significant.
A legal guardian is appointed only after a court has formally adjudicated that a person is incapacitated — meaning impaired by mental illness or intellectual disability to the extent that the person "lacks sufficient capacity to govern himself and manage his affairs." N.J.S.A. 3B:1-2. That process requires a formal complaint, sworn affidavits from qualified medical professionals, at least twenty days' notice to the person, the right to independent counsel, and a hearing at which incapacity must be proven by clear and convincing evidence. Only then may a court appoint a guardian with the legal authority to make decisions on someone else's behalf. For more on how that process works, see Understanding Guardianship in New Jersey and What Happens After You're Appointed Guardian.
A guardian ad litem serves a fundamentally different and more limited function. When a person is alleged — not adjudicated — to be mentally incapacitated, a court may appoint a guardian ad litem to investigate the question and report back. The guardian ad litem acts, as the Court put it, as "the eyes of the court" — an independent investigator, not a decision-maker. The guardian ad litem's recommendations are not binding on the court, and the court cannot delegate its own fact-finding function to the guardian ad litem. The guardian ad litem's job is to advise the court whether a formal guardianship hearing under Rule 4:86 should proceed — not to replace the person's judgment in the meantime.
In S.T.'s case, the court skipped the adjudication entirely. It appointed a guardian ad litem, then immediately handed that person the authority to settle S.T.'s lawsuit over her objection — without ever holding the guardianship hearing that New Jersey law requires. The Supreme Court described this as the trial court "abdicating the Judiciary's nondelegable oversight and factfinding function" and "outsourcing to the guardian ad litem the role of final arbiter of S.T.'s capacity."
The Right to Make a Poor Decision
One of the most important principles running through the Supreme Court's opinion is the one the lower courts failed to apply: making a decision that others consider unwise is not, by itself, determinative of incapacity.
New Jersey law recognizes a clear public policy favoring the right of self-determination for all people. Competent people, the Court noted, "ordinarily can choose what they want, even when their choices are unwise or contrary to their best interests." The Rules of Professional Conduct require lawyers to abide by their client's decisions about the scope and objectives of representation — including the decision whether to settle a lawsuit. RPC 1.2(a). A lawsuit is a property right protected by the Due Process Clause of the Fourteenth Amendment, and that right cannot be taken away without following the procedural safeguards the law demands.
The trial court judge told S.T. at the settlement hearing that she was "a very intelligent woman" but that "sometimes a little knowledge is dangerous" and that the mere fact that she wanted to reject a $625,000 offer was "troubling." The Supreme Court saw that reasoning for what it was: substituting the court's and counsel's judgment for the client's, without the legal authority to do so. As the Court observed, had S.T. not rejected the original $475,000 offer — the very rejection her attorney cited as evidence of her diminished capacity — an additional $150,000 would never have been placed on the table.
This same tension between protection and autonomy runs through all of New Jersey's guardianship law. Even in a formal guardianship proceeding, the Court has held that a family member cannot be bypassed without a plenary hearing and proper due process — and that the incapacitated person's own prior expressed wishes must be considered. See New Jersey Appellate Court Clarifies Judge’s Role in Guardianship Cases.
When Diminished Capacity Does Not Mean Incapacity
The Court did not rule that S.T. was definitely competent, or that her attorney was wrong to have concerns. It ruled that those concerns, however sincere, had to be tested through a proper legal process before they could justify overriding S.T.'s decisions. Diminished capacity — the standard her attorney described — is not the same as legal incapacity under New Jersey law. A person can process information slowly, struggle with complex tasks, or even make choices others consider irrational, and still retain the legal right to govern her own affairs.
The distinction matters in a range of contexts beyond personal injury litigation. A person without a formal guardian has the right to make their own financial decisions, their own medical decisions, and their own legal decisions — even ones that others in their life consider harmful. Until a court makes a formal finding of incapacity through the process New Jersey law requires, that person's autonomy is legally protected.
The lesson of S.T. is straightforward. Good intentions — whether those of an attorney, a family member, or a court — do not substitute for due process. The procedures New Jersey law requires before a person can be deprived of the right to manage her own affairs exist for a reason. They are not bureaucratic formalities. They are the line between protection and the loss of liberty.
by Jose D. Roman | Apr 21, 2026 | Estate Planning, Guardianship, Living Will, Power of Attorney
Your spouse is rushed to the hospital. The doctors need to make critical decisions about their treatment. Who has the legal right to make those decisions? Who has access to information? And what happens when adult children — or stepchildren — disagree with what you want?
These are not hypothetical questions. They play out in New Jersey hospitals and emergency rooms regularly, and the answers depend almost entirely on whether the incapacitated person planned ahead. This post explains the legal framework governing spousal rights in a medical emergency in New Jersey, and why the absence of proper documents can turn a medical crisis into a legal one.
The Fundamental Right to Control Your Own Medical Care
New Jersey law starts from a clear premise: every competent adult has a fundamental right to make their own health care decisions, including the right to refuse treatment. This right does not disappear simply because a person becomes ill or loses the ability to speak for themselves. The New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq., is built around the principle that a person’s documented wishes must be honored even when they can no longer communicate them directly.
The problem arises when a person loses decision-making capacity — whether temporarily due to a medical procedure, or permanently due to a stroke, dementia, or traumatic injury — and has not left clear instructions or designated someone to act on their behalf. In that vacuum, conflict among family members is not just possible. It is common.
Scenario 1: Your Spouse Has an Advance Directive
An Advance Directive is the umbrella term under New Jersey law for two related documents: a Proxy Directive (Healthcare Proxy or Durable Power of Attorney for Healthcare), which designates a specific person to make medical decisions, and an Instruction Directive (Living Will), which sets out the patient’s specific wishes regarding treatment. The basics of Living Wills are covered in an earlier post: Understanding Living Wills: Why They Matter and How to Create One.
When a valid Advance Directive is in place and designates a Health Care Representative, that person — and that person alone — has legal authority to make medical decisions once the patient is determined to lack decision-making capacity. If the spouse is designated as the Health Care Representative, they have clear legal authority under N.J.S.A. 26:2H-61. Healthcare providers are required to treat the Health Care Representative’s decisions as if they came from the patient directly. Adult children, stepchildren, siblings, and other family members have no legal standing to override those decisions, regardless of how strongly they feel about the matter.
One critical note: under N.J.S.A. 26:2H-57(c), a designation of a spouse as Health Care Representative is automatically revoked upon divorce or legal separation. If your spouse’s Advance Directive was executed during a prior marriage and never updated, the former spouse no longer has authority — and there may be no designated representative at all.
Scenario 2: Your Spouse Has No Advance Directive
This is where the situation becomes significantly more complicated. When there is no Advance Directive, New Jersey does not have a formal statutory surrogate decision-making law that automatically grants the spouse legal authority to make medical decisions. Instead, the law operates through a combination of common practice, hospital or medical facility policy, and the general principles of the NJ Advance Directives Act.
In practice, New Jersey hospitals and healthcare providers follow a default hierarchy when a patient lacks both capacity and an Advance Directive. The spouse or domestic partner is generally treated as the presumptive decision-maker first, followed by adult children, then parents, then other next of kin. However, this default hierarchy is not codified as a rigid legal rule in the same way it is in some other states. It is a practical framework that healthcare providers follow, and it can break down when family members disagree — particularly when adult children from a prior relationship contest the spouse’s authority. When disputes are not resolved amicably, this often will lead to legal action.
When Children and Stepchildren Get Involved
This is the most emotionally charged and legally murky area of healthcare decision-making, and it arises more frequently in blended families than most people expect.
Consider a common scenario: a man remarries later in life. He has adult children from his first marriage who have a complicated relationship with his new wife. He is hospitalized following a stroke and cannot communicate his wishes. He has no Advance Directive. His wife believes he would not want aggressive intervention; his adult children disagree and want every available treatment pursued. Who wins?
Without an Advance Directive, there is no definitive legal answer under New Jersey law. In the absence of a designated Health Care Representative, N.J.S.A. 26:2H-64 provides that an Instruction Directive (Living Will) alone — without a named proxy — can guide treatment decisions. But if there is no document at all, the decision-making process defaults to the attending physician, guided by the patient’s known preferences, family input, and the hospital’s ethics committee if necessary.
Stepchildren have no automatic legal standing under New Jersey law to make healthcare decisions for a step-parent. Neither do biological children, for that matter, if a spouse has been designated as Health Care Representative. But in the absence of any legal designation, healthcare providers must navigate competing family voices without clear legal authority to resolve the dispute — which can result in delayed treatment, institutional ethics committee referrals, or in many cases, court-ordered guardianship.
How New Jersey Handles Family Disputes
The New Jersey Advance Directives for Health Care Act contains a dispute resolution mechanism under N.J.S.A. 26:2H-66. When disagreements arise about a patient’s care — whether over the interpretation of an Advance Directive, the patient’s decision-making capacity, or the appropriate course of treatment — any interested party can invoke the dispute resolution process established by the healthcare institution. Most hospitals in New Jersey maintain ethics committees for exactly this purpose.
In cases where the dispute cannot be resolved through the hospital’s internal process, or where there is no appropriate decision-maker available, a court can intervene and appoint a guardian under New Jersey’s guardianship statutes. Guardianship proceedings in this context are filed in the Superior Court, Chancery Division, Probate Part, in the county where the incapacitated person resides.
For more on how guardianship works in New Jersey, see our post: Understanding Guardianship in New Jersey: Why It May Be Necessary and How to Obtain It.
A Note on HIPAA and Medical Information
Even before the question of decision-making authority arises, a spouse may face a more immediate obstacle: access to medical information. Under the federal Health Insurance Portability and Accountability Act (HIPAA), healthcare providers are prohibited from disclosing a patient’s medical information without authorization. In an emergency, providers will typically share information with a spouse as the presumptive next of kin. But in situations where family relationships are contested or communication is disrupted, a spouse may find themselves unable to get basic information about their partner’s condition.
A HIPAA authorization — a separate document designating who may receive medical information — can address this gap. Many comprehensive Advance Directive forms include one. If your spouse’s Advance Directive does not include a HIPAA authorization, it is worth asking your attorney about adding one.
What Every New Jersey Resident Should Do
The good news is that all of the scenarios described above are preventable with proper planning. Here are steps that everyone — especially people in blended families — should take:
- A Proxy Directive (Healthcare Proxy): Designates a specific person to make medical decisions and eliminates any ambiguity about who is in charge. Should include an alternate designee in case the primary is unavailable.
- An Instruction Directive (Living Will): Documents the patient’s specific wishes about life-sustaining treatment, artificial nutrition, resuscitation, and other critical decisions. Reduces the burden on the Health Care Representative and minimizes the grounds for family disputes.
- A HIPAA Authorization: Ensures that designated individuals can receive medical information even in ambiguous situations.
- A conversation with your family: Documents are only as effective as the communication surrounding them. Adult children — biological and step — should know what documents exist, how to access the originals, who is designated, and what the patient’s wishes are. Surprises at the hospital are often the root cause of conflict.
- Regular review and updates: Advance Directives should be reviewed after major life events — a new marriage, a divorce, a serious diagnosis, or a change in the patient’s treatment preferences. A document executed ten years ago may no longer reflect current wishes or circumstances.
The State of New Jersey provides free Advance Directive forms through the New Jersey Department of Health. These are available at:
NJ Department of Health — Advance Directive Forms and FAQs.
While these forms are legally valid when properly filled out, signed and witnessed, they are not a substitute for individualized legal counsel — particularly for blended families, individuals with complex medical histories, or anyone whose family dynamics suggest the possibility of conflict.
Final Thoughts
A medical emergency is not the time to be resolving questions about who has legal authority to make decisions. By the time those questions arise, it is often too late to execute new documents, and the resulting disputes can cause lasting damage to family relationships on top of the medical crisis itself.
The rights of a spouse in a medical emergency are clear when proper documents are in place — and deeply uncertain when they are not. If you, your spouse or any adult family members have not yet executed Advance Directives, or if your existing documents are outdated, contact your attorney to schedule a consultation.
by Jose D. Roman | Mar 25, 2026 | Estate Planning, Guardianship, Irrevocable Family Trusts, Medicaid, Medicaid Planning, Power of Attorney, Trusts
When most people hear the word “divorce,” they think of a relationship in crisis. But for some New Jersey couples facing the catastrophic cost of long-term care, divorce is not a sign of a failing marriage — it is a deliberate financial planning strategy designed to protect a healthy spouse from impoverishment while allowing the other spouse to qualify for Medicaid.
It sounds counterintuitive. It raises profound emotional and ethical questions. And it is not a strategy that is right for most families. But in the right circumstances, a so-called “Medicaid divorce” is a legitimate legal strategy under New Jersey law.
Why Married Couples Face a Unique Medicaid Challenge
Medicaid treats married couples differently than single individuals when assessing eligibility for long-term care benefits. When one spouse applies for Medicaid to cover nursing home or home-based long-term care, Medicaid looks at the combined assets of both spouses — regardless of whose name the assets are in — and requires a spend-down to very low levels before the institutionalized spouse qualifies.
New Jersey does provide some protection for the healthy spouse, known as the “Community Spouse.” The Community Spouse Resource Allowance (CSRA) permits the Community Spouse to retain a portion of the couple’s combined countable assets. For 2026, the CSRA in New Jersey ranges from a minimum of $32,532 to a maximum of $162,660, depending on the total assets. The community spouse is also entitled to a Minimum Monthly Maintenance Needs Allowance (MMMNA) to cover monthly living expenses — currently $2,643.75 per month.
For couples with modest assets, the CSRA and MMMNA may provide adequate protection. But for couples with significant savings these protections may still leave the community spouse facing financial hardship after a Medicaid spend-down.
What Is a Medicaid Divorce?
A Medicaid divorce is exactly what it sounds like: the couple obtains a real, legal divorce for the primary purpose of restructuring their assets. If done properly the divorce allows the Medicaid applicant spouse to qualify for Medicaid while allowing the healthy spouse to retain a larger share of the marital estate than Medicaid’s spousal protection rules would otherwise permit.
This is not a separation, a legal fiction, or a paper transaction. New Jersey requires an actual divorce. The parties must satisfy the grounds for divorce under New Jersey law — most commonly irreconcilable differences under N.J.S.A. 2A:34-2(i), which requires only that the parties have experienced irreconcilable differences for a period of six months. Establishing grounds is generally straightforward. The harder questions involve asset division, legal capacity, and Medicaid’s scrutiny of the resulting property settlement.
How Divorce Can Help: The Mechanics
Under New Jersey matrimonial law, divorce entitles each spouse to an equitable distribution of marital assets. “Equitable” does not necessarily mean equal — courts consider a range of factors, including each spouse’s financial needs, health, and ability to earn income. In the context of a Medicaid divorce, the parties’ attorneys will negotiate a property settlement agreement (PSA) that awards the healthy spouse a disproportionate share of the marital estate — often well above 50 percent — based on their demonstrated need to support themselves independently.
Once the divorce is finalized and assets are distributed pursuant to a court order, Medicaid should treat the applicant spouse’s eligibility as a single individual. The assets awarded to the now ex-spouse are no longer counted when applying for Medicaid. If the applicant spouse’s retained assets fall below Medicaid’s $2,000 limit, they may qualify for long-term care Medicaid.
Critically, under New Jersey law, a court order transferring assets to the community spouse will supersede Medicaid’s spousal resource rules. This is the legal foundation that makes Medicaid divorce viable in New Jersey: the court’s equitable distribution order takes precedence over Medicaid’s default calculation of spousal assets.
The Transfer Penalty Risk: Proceed with Caution
The most significant legal risk in a Medicaid divorce is the transfer penalty. Medicaid imposes a look-back period of 60 months, during which any asset transfers for less than fair market value are penalized with a period of ineligibility. A divorce property settlement that awards the community spouse an outsized share of marital assets could be characterized by Medicaid as a disqualifying transfer — unless the division is properly structured and supported by documented findings.
New Jersey Medicaid does not simply accept a property settlement agreement at face value. The agency will scrutinize the terms of the divorce decree and the underlying rationale. A PSA that reads like a Medicaid planning document, with no independent factual basis for the proposed distribution, is unlikely to survive that scrutiny.
This is why Medicaid divorce requires coordinated representation by both a matrimonial attorney and an experienced elder law attorney. The two bodies of law must work together, and a misstep in either domain can result in a significant period of Medicaid ineligibility at precisely the moment care is most urgently needed.
The Legal Capacity Question
One of the most difficult issues in Medicaid divorce planning is legal capacity. When a spouse is suffering from a condition that impairs cognitive functioning, their ability to participate in — and consent to — divorce proceedings must be carefully evaluated before any action is taken.
If the Medicaid applicant spouse lacks capacity, the question becomes whether a Power of Attorney gives the agent authority to pursue or consent to divorce on their behalf. Most “standard” Powers of Attorney in New Jersey do not explicitly authorize the agent to file for or consent to divorce proceedings. This is a significant gap. Families contemplating Medicaid divorce as a potential future strategy should ensure that their Power of Attorney documents are drafted broadly enough to address this contingency — or that the question is addressed before capacity is lost.
If no Power of Attorney is in place and the applicant spouse lacks capacity, it may be necessary to pursue guardianship before any matrimonial proceedings can commence. That adds time, cost, and complexity to an already complicated situation.
The Emotional Reality
No discussion of Medicaid divorce is complete without acknowledging what it asks of a couple. For a husband and wife who have been together for many years, the idea of filing for divorce — even “on paper” — can feel like a profound betrayal of the relationship, regardless of the financial logic. Many families ultimately decide against it for this reason alone, and that is a completely legitimate choice.
Some couples find it helpful to think of the divorce as a legal and financial restructuring that does not change the nature of their relationship. They may continue to care for one another as spouses in every meaningful sense. The legal status changes; the relationship does not have to. But this reframing does not work for everyone, and it should never be minimized or dismissed.
Divorce can also impact Social Security survivor benefits, inheritance rights, life insurance beneficiary designations, and existing estate plans. Every one of these downstream consequences needs to be evaluated before proceeding.
Alternatives Worth Considering First
Before pursuing a Medicaid divorce, families should work with an elder law attorney to evaluate whether less disruptive alternatives can achieve comparable results. Depending on the facts, these may include:
- Irrevocable Medicaid trusts: Assets transferred to an irrevocable trust more than five years before a Medicaid application are not counted.
- Convert Countable Assets to Exempt Assets: Converting countable assets into exempt ones — such as home improvements, paying off a mortgage, purchasing a prepaid funeral trust, or buying a Medicaid-compliant annuity — can reduce countable assets without a transfer penalty.
Final Thoughts
Medicaid divorce is one of the most emotionally complex strategies in the elder law toolkit. It is also, in the right circumstances, a legally sound and financially significant option that can protect a community spouse from genuine impoverishment. The key words are “right circumstances.” This is not a strategy to pursue without extensive legal counsel from attorneys who understand both New Jersey matrimonial law and Medicaid eligibility rules. The financial, legal, and emotional stakes are too high for anything less. If you are facing a situation where one spouse needs long-term care and you are concerned about what that means for the other, contact your attorney to discuss options.