Challenging A Gift Made By An Elderly Person – Incapacity

HNWElder Abuse and Financial Exploitation, Elder Law

By Fredrick P. Niemann, Esq. a New Jersey Elder Abuse and Financial Exploitation Lawyer

If it is found that an elderly person does not have sufficient mental capacity (a/k/a competency), then any gift made by the elderly person can be challenged in court.  An elderly person is legally permitted to make a gift to anyone he or she wants and does not need the approval of his/her children but that doesn’t mean they may not want to challenge the gift.

It is important that there is a financial plan for when an elderly person is found to be lacking cognitive and functional capacity.  Legal instruments such as Power of Attorney can be used in preventing an elderly person from making a gift by mistake.   In New Jersey, anyone over the age of 18 can be given power of attorney.

Many (maybe even most) people do not make plans for their incapacity, and how to be cared for if it happens.  Thus, if an elderly person lacks the capacity to make decisions, another family member will not be in a legal position to address their needs.  Then a guardianship must be filed.

An elder law attorney who deals with these issues regularly, and is experienced in doing so is useful in these cases.  The legal system is complex, and help from an elder law attorney will make it much less complex.  If you feel like this post is talking to you, contact us so an elder law attorney can consult with you as soon as possible to avoid potential legal complications.

Contact me personally today to discuss your Elder matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at


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