| Motor vehicle violations and criminal charges can cost you. You may have to pay fines in court or receive points on your drivers license. An accumulation of too many points, or certain moving violations may require you to pay expensive surcharges to the N.J. Division of Motor Vehicles or have your license suspended. It is usually best to hire an experienced attorney to represent you for motor vehicle violations. The trial in a Municipal Court is held in front of a Municipal Court Judge, and no jury trial is permitted. The Judge is ordinarily selected by the Town Mayor and Council. The appointment sometimes is based upon input from the Police Chief, PBA and local political organization. If after your trial you are unhappy with the decision and the suspension is excessive, you should hire an experienced attorney for the appeal. There is only twenty days for your attorney to properly prepare the papers and appeal. On appeal, the Judge only reads a transcript and looks at exhibits. There is no new testimony and the appeal judge is bound by the fact finding below, according to State v Lutz 309 N.J. Super. 317 (App. Div. 1998). The following are some of the Court Rules you and your attorney must comply with. Appeal; How Taken; Time Rule 3:23-2 Appeals from judgments of conviction in the municipal court shall be taken in accordance with R. 3:23 and 3:24, The defendants attorney must file a notice of appeal with the municipal court within 20 days after the entry of judgment. Within 5 days after the filing of the notice of appeal, one copy thereof shall be served upon the prosecuting attorney, , and one copy thereof shall be filed with the county clerk together with the filing fee and an affidavit of timely filing of said notice with the clerk of court and service upon the prosecuting attorney. On failure to comply with each of the foregoing requirements, the appeal shall be dismissed by the Superior Court, Law Division without further notice or hearing. Notice of Appeal; Contents 3:23-3. The notice of appeal shall set forth 1. the title of the action; 2. the name and the address of the appellant and appellants attorney, 3. a general statement of the nature of the offense; 4. the date of the judgment; 5. the sentence imposed; 6. whether the defendant is in custody; 7. if a fine was imposed; 8 whether the fine was paid or suspended; and 9 the name of the court from which the appeal is taken. There shall be included in the Notice of Appeal a statement as to whether or not a stenographic record or sound recording was made pursuant to R. 7:8-8 in the court from which the appeal is taken. Where a verbatim record of the proceeding was taken, the Notice of Appeal shall also contain the attorneys certification of compliance with R. 2:5-3(a) (request for transcript) and R. 2:5-3(d) (deposit for transcript) or certification of the filing and service of a motion for abbreviation of transcript pursuant to R. 2:5-3(c). Duties of Clerk of the Trial Court and Superior Court, Law Division 3:23-4. (a) Preparation of Transcript. Upon the filing of the notice of appeal, the clerk of the court below shall forthwith deliver to the county clerk the complaint, the judgment of conviction, the exhibits retained by the clerk, and a transcript of the entire docket in the action, and the county clerk shall deliver copies thereof to the prosecuting attorney on request. (b) Docketing; Hearing Date. Upon the filing of a copy of the notice of appeal, the affidavit and the payment of the filing fees, as provided by R. 3:23-2, the county clerk shall docket the appeal and shall thereafter fix a date for the hearing of the appeal and mail written notice thereof to the prosecuting attorney and the appellant, or, if the appellant is represented, the appellants attorney. Stay of Penalties Rule 7:13-2. A sentence to pay a fine, a fine and costs, a forfeiture, an order for probation, or a revocation of the license to operate a motor vehicle may be stayed by the court in which the conviction was had or to which the appeal is taken on such terms as the court deems appropriate. Relief Pending Appeal Rule 3:23-5. (a) Relief From Custodial Sentence. If a custodial sentence (jail) has been imposed, and an appeal from the judgment of conviction has been taken, the defendant shall be admitted to bail by a judge of the Superior Court in accordance with the standards set forth in R. 3:26-1a. (b) Relief From Fine. A sentence to pay a fine, a fine and costs, or a forfeiture may be stayed by the court in which the conviction was had or to which the appeal is taken upon such terms as the court deems appropriate. (c) Relief From Order for Probation. An order for probation may be stayed if an appeal is taken. Hearing on Appeal Rule 3:23-8. (a) Plenary Hearing; Hearing on Record; Correction or Supplementation of Record; If a verbatim record or sound recording was made pursuant to R. 7:8-8 in the court from which the appeal is taken, the original transcript thereof duly certified as correct shall be filed by the clerk of the court below with the county clerk, and a certified copy served on the prosecuting attorney by the clerk of the court below within 20 days after the filing of the notice of appeal or within such extension of time as the court permits. In such cases the trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury. The court shall provide the municipal court with reasons for the remand. The court may also supplement the record and admit additional testimony whenever : 1) the municipal court erred in excluding evidence offered by the defendant, (2) the state offers rebuttal evidence to discredit supplementary evidence admitted hereunder, or (3) the record being reviewed is partially unintelligible or defective. Rule 3:23-8 (b) Briefs. Briefs shall be required only if questions of law are involved on the appeal or if ordered by the court and shall be filed and served prior to the date fixed for hearing or such other date as the court fixes. (It is better for the defense to prepare a brief with applicable cases and statutes to assist the Judge who handles the de novo appeal) (c) Waiver; Exception. The appeal shall operate as a waiver of all defects in the record including any defect in, or the absence of, any process or charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances of which the court from whose judgment or sentence the appeal is taken had jurisdiction, except that if the appeal is from a conviction for an indictable offense, the appeal shall not operate as a consent that the complaint may be amended so as to charge such an offense or a new or different indictable offense, unless the defendant agrees to such amendment. (d) Defenses Which Must Be Raised Before Trial. The defenses of double jeopardy, lack of jurisdiction in the court, failure of the complaint to charge an offense, the unconstitutionality of the statute, regulation promulgated pursuant to statute or ordinance under which the complaint is made and all other defenses and objections based on defects in the institution of the prosecution or in the complaint must be raised by motion and determined in accordance with R. 3:10. (e) Disposition by Superior Court, Law Division. If the defendant is convicted, the court shall impose sentence as provided by law. If the defendant is acquitted, the court shall order the defendant discharged, the conviction in the court below set aside, and the return of all fines and costs paid by the defendant. An appropriate judgment shall be entered and a copy thereof transmitted to the court below. Conclusion If someone is going to appeal a conviction by the Municipal Court Judge, they need to immediately file all the necessary appeal papers, Certifications and briefs. Occasionally, the County Prosecutors office may even negotiate a plea bargain to a lesser offense with your attorney if permitted under the law. When your drivers license is in jeopardy or you are facing thousands of dollars in fines, DMV surcharges and car insurance increases, you need excellent legal representation. The least expensive attorney is not always the answer. Please call us if you need experienced legal representation in a traffic/municipal court matter. |
Tuesday, October 1, 2019
Municipal Court Appeals in NJ
Probate Answers in NJ
| Probate is the process where after death the instructions of the Will are carried out. Will is admitted to “Probate” in the County Surrogate. Some people refer to the Surrogate as the Will Clerk. Upon the death of the testator or testatrix (maker of the Will), the probate procedure can begin. This is the legal process which establishes the genuineness of the Will. It is done by the Surrogate in the county where the testator or testatrix resided at the time of death. The probate application must contain the following information: 1. the applicant's residence;? 2. the name, domicile and date of death of the decedent;? 3. the names and addresses of the decedent's spouse, heirs (those entitled to take under the laws of interstate succession), and any person named to serve as Executor;? 4. the ages of any minor heirs; and? 5. the names of the testator's children when the Will was made and the names of children born and adopted after the Will was made, or their children, if any. To minimize time spent in the Surrogate, it is recommended, and in some counties required, that before an Executor submits the Will for probate the executor’s attorney or executor send the Court: 1) a data sheet (referred to in some counties as an information sheet or a fact sheet) containing the information needed by the Surrogate to complete the application; 2) a copy of the Will; and 3) a copy of the death certificate. FILING A PROBATE APPLICATION Upon the death of a person, a probate proceeding may be commenced by offering the decedent's (the dead person's ) last Will for probate in the Surrogate's Court of the county in which the decedent was domiciled at death. R. 4:80-1(a). Generally, the Executor nominated in the Will brings the proceeding by filing a verified application with the Court. When the applicant files the original Will for probate, the applicant must also file a death certificate (and original with a raised seal). A filing fee of approximately $150 must be paid. Once the Will, application and death certificate are filed, the Surrogate will review the papers, and if there are no irregularities or objections, admit the Will to probate. Although New Jersey law prohibits admission of a Will to probate within 10 days of the testator's death, an applicant may submit the application prior to expiration of the 10-day period. If the Will is filed after the 10-day waiting period, many Courts will issue a judgment for probate contemporaneously with the filing of the probate papers. Qualifying the Executor Once the Will is admitted to probate, the Court will issue letters testamentary to an Executor who has properly qualified to serve. An Executor named in a Will qualifies to serve by filing a form affidavit in which the Executor agrees to perform his or her duties. The nominated Executor must also provide a power of attorney to the Surrogate empowering the Surrogate to accept service of process of claims against the estate. Once the Executor qualifies, the Court then issues letters testamentary. Mailing Probate Notices After a Will is admitted to probate, the Executor’s Attorney or Executor must mail within 60 days a notice of probate to the decedent's spouse, heirs and all beneficiaries under the Will. The notice of probate should contain the executor's name and address, place and date that the Will was probated, and an offer to furnish a copy of the Will upon request. Within 10 days of mailing the notice the Executor’s Attorney or Executor should file proof of service of the notice with the Surrogate's Court. Once notice of probate has been sent and proof of mailing has been filed the probate process is essentially completed. Completing the probate process should cause only minimal delay, perhaps a few weeks, in administering a decedent's affairs. The cost of admitting a Will to probate should be limited. Unlike in some other states, the Surrogate's filing fee in New Jersey is the same regardless of the size of the estate. See Zimiles Probate is not a Dirty word in New Jersey N.J. Lawyer pg. 14 ( July/August 1992) How do I begin the probate procedure? The Executor or personal representative can be appointed and the Will admitted to probate in most cases by going to the Surrogate's Court with the original Will, certified death certificate, and, if the Will is not self-proven, at least one of the witnesses who signed the Will must prove the signature on the Will. How is an administrator appointed when there is no Will? When there is no Will, an administrator, administratrix or personal representative is appointed by the Surrogate's Court. The surviving spouse has the first right to apply for the position of administrator; however, any heir of the decedent may be appointed. When one of several heirs seeks to be appointed administrator, all other heirs must renounce their right to be appointed administrator. In most cases, a surety bond must be furnished to cover the value of the real and personal property in the estate. What kind of information should I collect? The decedent's personal representative should make a list of all of the next of kin of the person who died, along with their degree of relationship, addresses and ages. What if the Will is not properly executed? The Surrogate will advise the personal representative as to the proper procedure in order to allow the Will to be admitted to probate. This procedure normally involves a formal hearing before a Judge of the Superior Court. How soon must state inheritance taxes be paid? State inheritance tax returns must be filed and the tax paid within eight (8) months after decedent's death to avoid interest. Are unpaid inheritance taxes a lien on property? Yes, to sell real estate, you Will need to obtain tax waivers from the New Jersey State Transfer Inheritance 'Tax Bureau, and the waivers must be filed with the County Clerk in the county where the land is located. Land held by husband and wife as tenants by the entirety need not be reported and may be transferred without a waiver. Other property may be subject to a lien for unpaid inheritance taxes such as bank accounts and certificates of deposit. How about federal estate taxes? In 2008 there is no federal tax due unless the estate exceeds $2,000,000. However, there is a New Jersey Estate tax for estates over $675,000. There is also an unlimited federal marital deduction, which means unlimited amounts of property can be transferred between spouses without estate of gift taxes. How many Surrogate's Certificates (Shorts) Will I need? A list of all of the assets of the estate should also be prepared to help determine the number of Surrogate's Certificates that must be issued by the probate clerk in the Surrogate's Office. When is the Will admitted to probate? After all the proper forms are filed with the probate clerk, the clerk will prepare a judgment which admits the Will to probate. The Surrogate then signs the judgment and issues Letters Testamentary. What are Surrogate's Certificates used for? Surrogate's Certificates act as evidence of the authority of the personal representative ( Executor, Administrator, Trustee ) to act. These certificates are necessary to accomplish certain tasks such as transferring stocks, closing bank accounts, etc. Is it necessary to send copies of the Will to the beneficiaries? From the time the Will is probated, the Executer has 60 days to mail all beneficiaries a notice that they can be provided with a copy of the Will, along with a notice giving the specific date and place the Will was entered into probate. See Zimiles Probate is not a Dirty word in New Jersey N.J. Lawyer Basically, what is the Executor/Administrator required to do? The Executor or Administrator is, in general, required to collect and safeguard all of the assets of the estate and eventually to pay the debts of the decedent, as well as any taxes due, and be able to provide an accounting of his actions to the beneficiaries or heirs. An Executor or Administrator must obtain the necessary legal documents, called either LETTERS TESTAMENTARY (for an Executor) or LETTERS OF ADMINISTRATION (for an Administrator), are obtained through the Surrogate in the county in which the DECEDENT (the deceased person) resided at the time of death. The duties of the personal representative include: * - finding the Will and having it PROBATED. Probate is the legal procedure used to establish the validity of a Will.?* - locating and protecting the assets of the estate.?* - finding and notifying the heirs.?* - paying the debts, expenses, and taxes of the estate from the assets of the estate.?* - complying with the requirements of state and federal law.?* - distributing property to the heirs after all proper procedures have been followed. Is an attorney necessary in estate administration? As a practical matter, it is very difficulty for a non-lawyer to correctly follow the required procedures in administering an estate without the assistance of an attorney. The personal representative selects the attorney for the estate. You may wish to call your attorney to give you further advice as to specific duties and obligations. Where does the Executor/Administrator obtain the funds to pay debts? The Executor may, in most cases, withdraw up to one-half of the funds in the decedent's New Jersey bank accounts. Generally, the Executor should open an estate checking account which can be used to receive and disburse funds. Am I entitled to compensation for acting as Executor or Administrator? An Executor or Administrator is entitled to corpus commissions of 5% of the first $200,000.00 of estate assets subject to administration, 3-1/2% on the excess over $200,000.00 up to $1,000,000.00 and 2% or such other percentage as the Court may determine on the excess over $1,000,000.00. If there is more than one Executor or Administrator, an additional 1% corpus commission may be allowed by the Court for each additional Executor or Administrator. In addition to corpus commissions, an Executor or Administrator is entitled to income commissions of 6% of income earned on estate corpus during the administration of the estate. How do I handle joint bank accounts or certificates of deposit? Certain bank accounts and certificates may be owned with rights of survivorship, which means that upon the death of one party to the account, the surviving party (or parties) become the sole owner (or owners). If the decedent maintained such an account, the survivor Will be able to withdraw on-half of the funds in the account by giving the bank a Death Certificate and without the need to provide anything from the Surrogate. The other half will not be released until a tax waiver is issued by the New Jersey Transfer Inheritance Tax Bureau, normally after the tax is paid and the return is filed. Is all this paperwork necessary even on small estates? There is a procedure whereby the assets of small estates can be transferred to the surviving spouse without the necessity of administration. The spouse files an affidavit stating, among other things, that the decedent had no Will and that all of the real and personal assets of the decedent do not exceed $10,000. How do I prove that legacies were paid? The Executor has a duty to pay the legacies or distribute shares as provided for under the Will; however, when he /she does so, he/she must take a Release and Refunding Bond from the person taking the share. The Refunding Bond is then forwarded to the Surrogate for filing and recording. What if there is no Will? If the decedent dies without a Will (intestate), there is a statute which determines to whom the decedent's property is to be distributed according to the degree of family relationship. Estate administration and Probate Newsletter 2015 Kenneth Vercammen, Esq. Co-Chair ABA Probate & Estate Planning Committee 1. Executor Duties and Responsibilities 2. Power of Attorney 3 Provisions in a Living Will 4. Removing Executor of an Estate and complaint for accounting by an unhappy Beneficiary 5. Upcoming seminars 1. Executor Duties and Responsibilities At some point in time, you may be asked to serve as the executor of the estate of a relative or friend, or you may ask someone to serve as your executor. An executor’s job comes with many legal obligations. Under certain circumstances, an executor can even be held personally liable for unpaid estate taxes. Let’s review the major duties involved, which we’ve set out below. In General, the executor’s job is to 1. Administer the estate--i.e., collect and manage assets, file tax returns and pay taxes and debts--and 2. Distribute any assets or make any distributions of bequests, whether personal or charitable in nature, as the deceased directed (under the provisions of the Will). Duty of Executor in Probate & Estate Administration 1. Conduct a thorough search of the decedents personal papers and effects for any evidence, which might point you in the direction of a potential creditor; 2. Carefully examine the decedents checkbook and check register for recurring payments, as these may indicate an existing debt; 3. Contact the issuer of each credit card that the decedent had in his/her possession at the time of his/ her death; 4. Contact all parties who provided medical care, treatment, or assistance to the decedent prior to his/her death; Duties/ Executor to Do Fill out surrogate info sheet and send to surrogate Bring Will to Surrogate from Probate Notice of Probate to Beneficiaries (Attorney will handle) If charity, notice to Atty General (Attorney will handle) File notice of Probate with Surrogate (Attorney will handle) File first Federal and State Income Tax Return [CPA- ex Marc Kane] Prepare Inheritance Tax Return and obtain Tax Waivers (Attorney will handle) Apply to Federal Tax ID # Set up Estate Account at bank (pay all bills from estate account) Pay Bills File waivers within 8 months upon receipt (Attorney will handle) Prepare Informal Accounting Prepare Release and Refunding Bond (Attorney will handle) Obtain Child Support Judgment clearance (Attorney will handle) Let’s take a look at some of the specific steps involved and what these responsibilities can mean. Chronological order of the various duties may vary. Step 1: Probate. The executor must probate the Will. Probate is a process by which a Will is admitted. This means that the Willis given legal effect by the court. The courts decision that the Will was validly executed under state law gives the executor the power to perform his or her duties under the provisions of the Will. Step 2: Manage the Estate. The executor takes legal title to the assets in the probate estate. The probate court will sometimes require a public accounting of the estate assets. The assets of the estate must be found and may have to be collected. As part of the asset management function, the executor may have to liquidate or run a business or manage a securities portfolio. To sell marketable securities or real estate, the executor will have to obtain stock power, tax waivers, file affidavits, and so on. Step 3: Take Care of Tax Matters. An employer identification number (EIN) should be obtained for the estate; this number must be included on all returns and other tax documents having to do with the estate. The executor should also file a written notice with the IRS that he/she is serving as the fiduciary of the estate. This gives the executor the authority to deal with the IRS on the estates behalf. The executor is legally responsible for filing necessary income and estate-tax returns (federal and state) and for paying all death taxes (i.e., estate and inheritance). The executor can, in some cases be held personally liable for unpaid taxes of the estate. Tax returns that will need to be filed can include the estates income tax return (both federal and state), the federal estate-tax return, the state death tax return (estate and/or inheritance), and the deceased’s final income tax return (federal and state). Taxes usually must be paid before other debts. The New Jersey Estate tax starts from Estates over $675,000. Often it is necessary to hire an appraiser to value certain assets of the estate, such as a business, pension, or real estate, since estate taxes are based on the fair market value of the assets. After the filing of the returns and payment of taxes, the Internal Revenue Service will generally send some type of estate closing letter accepting the return. Occasionally, the return will be audited. Step 4: Pay the Debts. The claims of the estates creditors must be paid. Sometimes a claim must be litigated to determine if it is valid. Any estate administration expenses, such as attorneys, accountants and appraisers fees, must also be paid. Step 5 Last step: Distribute the Assets. After all debts and expenses have been paid, distribute the assets The executors legally imposed fiduciary duty is to act in all ways in the best interests of the estate and its beneficiaries. The duties of an executor can be difficult and challenging and should not be taken lightly. This is why it is important for the Executor to retain a skilled attorney to assist them and the estate. Casual or part-time attention is not likely to achieve success. 2. Reasons to sign a Power of Attorney A Power of Attorney allows your spouse or another person to administer your assets during your lifetime, either upon disability or now. The lack of a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your family or partner cannot pay your bills or handle your assets. The result can be lengthy delays. The Power of Attorney can be effective immediately upon signing or only upon disability. Most people who give a Power of Attorney to someone else do it with the thought that if they should become ill or incapacitated or if they should travel, the Power of Attorney will permit the holder of it to pay their bills and to handle all of their affairs for them as limited in the Power of Attorney. The term durable in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal. New Jersey has a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. Advance preparation of the Power of Attorney could avoid the inconvenience and expense of guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his / her decision. Once a serious problem occurs, it is usually too late. 3 Provisions in a Living Will All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their laws and public policy, the personal right of the individual patient to make voluntary, informed, choices to accept, reject or to choose among various alternative courses of medical and surgical treatment. WHY LIVING WILLS Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial continuation of life may seem to provide nothing medically necessary or valuable, serving only to extend suffering and draw out the dying process. PURPOSE OF LIVING WILLS In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in their self-determination and well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and policy of this State and the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts. REQUIREMENTS OF STATUTE The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be signed and dated in front of an attorney at law, other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute. 1. ______ shall be withheld or withdrawn as Life Sustaining Treatment. 2. ______ shall be provided to the extent medically appropriate even if other Life Sustaining Treatment is withheld or withdrawn. Directive as to Medical Treatment. I request that Life Sustaining Treatment be withheld or withdrawn from me in each of the following circumstances: (Initial all that apply) 1. ______ If the life sustaining treatment is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging my life, or is likely to merely prolong an imminent dying process; 2. ______ If I am permanently unconscious (total and irreversible loss of consciousness and capacity for interaction with the environment); 3. ______ If I am in a terminal condition (terminal stage of an irreversibly fatal illness, disease, or condition); or 4. ______ If I have a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh the likely benefits to me from such intervention. ______ None of the above. I direct that all medically appropriate measures be provided to sustain my life, regardless of my physical or mental condition. Organ Donation – We suggest clients initial yes (initial one) 1. ______ Yes, I wish, if feasible, to donate for transplant any part or all of any organ, tissue, eyes, bone, arteries or other parts or portions of my body which may be useful to another person. My Health Care Representative may take any action in furtherance of this gift (which I intend to be an anatomical gift in accordance with N.J.S.A. 26:6-57 et. seq. or similar law). Consistent with this gift life sustaining treatment may be temporarily continued or modified if I am brain dead so as to preserve and protect for transplant the useful portions of my body. 2. ______ No, I do not wish to make an anatomical gift. HEALTH CARE REPRESENTATIVE The declarant must designate one or more alternative health care representatives. Health care representative means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf. I hereby designate p1 to serve as my attorney-in-fact for the purpose of making medical treatment decisions. In the event p1 predeceases me or is unable or unwilling to act as my attorney-in-fact for the purpose of making medical treatment decisions, then I select ___ WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision. Treatment decisions in pursuit of an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity. This soon after shall be made a part of the patient's medical records. For additional information or to have a Living Will prepared, see your attorney. In addition, be certain your Last Will and testament is up to date. 4 Removing Executor of an estate and Complaint for accounting by an unhappy Beneficiary A Complaint for Accounting is filed by your attorney with the Probate Part to request on accounting, removal of the current executor and selection of a new person to administer and wrap up the estate. A signed certification of one or more beneficiaries is needed. In addition, an Order to Show Cause is prepared by your attorney. The Order to Show Cause is to be signed by the Judge directing the executor, through their attorney, to file a written answer to the complaint, as well as appear before the court at a specific date and time. As with a litigated court matter, trials can become expensive. Competent elder law/probate attorney may charge an hourly rate of $300-$400 per hour, with a retainer of $3000 needed. Attorneys will require the retainer to be paid in full up front. The plaintiff can demand the following: (1) That the named executor be ordered to provide an accounting of the estate to plaintiff. (2) Defendant, be ordered to provide an accounting for all assets of the person dated five years prior to death, if there was a Power of Attorney, sell before death. (3) Payment of plaintiffs attorneys fees and costs of suit for the within action. (4) Declaring a constructive trust of the assets of the decedent for the benefit of the plaintiff and the estate. (5) That the executor be removed as the executor/administrator of the estate and that our client be named as administrator of the estate. (6) That the executor be barred from spending any estate funds, be barred from paying any bills, be barred from taking a commission, be barred from writing checks, be barred from acting on behalf of the estate, except as specifically authorized by Superior Court Order or written consent by the plaintiff. EXECUTORS COMMISSIONS Executors are typically entitled to receive a commission to compensate them for work performed. However, if you have evidence that the executor has breached their fiduciary duties or violated a law, the Superior Court accounting complaint can request that the commissions be reduced or eliminated. COMPEL THE SALE OF REAL ESTATE AND OTHER PROPERTY Occasionally, a family member is living in a home owned by the decedent. To keep family harmony, often this family member is permitted to remain in the home temporarily. However, it may later become clear that the resident has no desire on moving, and the executor has neither an intention to make them move nor to sell the house. The remedy a beneficiary has can be to have your attorney include in the Superior Court complaint a count to 1) Remove the executor 2) Remove the tenant and make them pay rent to the estate for the time they used the real property since death without paying rent 3) Compel the appraisal of the home and, thereafter, the sale of the property 4) Make the executor reimburse the estate for the neglect or waste of assets. For a beneficiary, you will probably eventually be requested to sign a release and refunding bond. If you have evidence of misappropriation, you may consider asking the executor for an informal accounting prior to signing the release and refunding bond. If you have concern regarding the handling of an estate, schedule an appointment to consult an experienced attorney. 5. Upcoming seminars Throughout the year area Senior Centers, Libraries and AARP groups hold seminars. Email us at vercammenlaw@njlaws.com for dates of upcoming programs, or if your group would like to have a speaker on Wills, Probate or Estate Administration KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 732-572-0500 website: www.njlaws.com |
Answer to a Civil Complaint in the Superior Court Law Division Civil (Suits over $15,000) in NJ
| Our office represents Companies, insurance companies and people facing civil lawsuits. We provide representation throughout New Jersey. If a timely formal "Answer to Complaint" is not filed within 35 days, a default can be entered against the defendant. After a default judgment, assets can be seized, wages garnished, property sold and even civil arrest if you ignore court orders. Don't give up! Our Law Office can provide experienced attorney representation for civil lawsuits. Our website KennethVercammen.com provides information on civil lawsuits. The following is current NJ Court Rules on Answers in a Civil Complaint in the Superior Court Law Division. RULE 4:5. GENERAL RULES OF PLEADING Court 4:5-1. General Requirements for Pleadings (a) Pleadings Allowed. There shall be a Complaint and an Answer; an answer to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint pursuant to R. 4:8; a third-party answer, if a third-party complaint is served; and a reply, if an affirmative defense is set forth in an answer and the pleader wishes to allege any matter constituting an avoidance of the defense. No other pleading is allowed. (b) Requirements for First Pleadings. (1) Case Information Statement. Except in civil commitment actions brought pursuant to R. 4:74-7 and in actions in probate, foreclosure and all other general equity actions, a Case Information Statement in the form prescribed by Appendix XII to these rules shall be annexed as a cover sheet to each partys first pleading. (2) Notice of Other Actions and Potentially Liable Persons. Each party shall include with the first pleading a certification as to whether the matter in controversy is the subject of any other action pending in any court or of a pending arbitration proceeding, or whether any other action or arbitration proceeding is contemplated; and, if so, the certification shall identify such actions and all parties thereto. Further, each party shall disclose in the certification the names of any non-party who should be joined in the action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-1(b) because of potential liability to any party on the basis of the same transactional facts. Each party shall have a continuing obligation during the course of the litigation to file and serve on all other parties and with the court an amended certification if there is a change in the facts stated in the original certification. The court may require notice of the action to be given to any non-party whose name is disclosed in accordance with this rule or may compel joinder pursuant to R. 4:29-1(b). If a party fails to comply with its obligations under this rule, the court may impose an appropriate sanction including dismissal of a successive action against a party whose existence was not disclosed or the imposition on the noncomplying party of litigation expenses that could have been avoided by compliance with this rule. A successive action shall not, however, be dismissed for failure of compliance with this rule unless the failure of compliance was inexcusable and the right of the undisclosed party to defend the successive action has been substantially prejudiced by not having been identified in the prior action. 4:5-2. Claim for Relief Except as may be more specifically provided by these rules in respect of specific actions, a pleading which sets forth a claim for relief, whether an original claim, counter-claim, cross-claim or third-party claim, shall contain a statement of the facts on which the claim is based, showing that the pleader is entitled to relief, and a demand for judgment for the relief to which the pleader claims entitlement. Relief in the alternative or of several different types may be demanded. If unliquidated money damages are claimed in any court, other than the Special Civil Part, the pleading shall demand damages generally without specifying the amount. If a pleading filed in the Special Civil Part states a demand in excess of the amount cognizable in that court, said pleading shall be filed by the clerk for the full cognizable amount and any amount in excess thereof shall be deemed waived unless the action is transferred pursuant to R. 6:4-1. The clerk of the Special Civil Part shall, in any pleading filed that does not set forth a cognizable amount, consider the demand to be for the maximum amount and the maximum filing fee shall be charged. Upon service of a written request by another party, the party filing the pleading shall within 5 days after service thereof furnish the requesting party with a written statement of the amount of damages claimed, which statement shall not be filed except on court order. 4:5-3. Answer; Defenses; Form of Denials An Answer shall state in short and plain terms the pleaders defenses to each claim asserted and shall admit or deny the allegations upon which the adversary relies. A pleader who is without knowledge or information sufficient to form a belief as to the truth of an allegation shall so state and, except as otherwise provided by R. 4:64-1(b) (foreclosure actions), this shall have the effect of a denial. Denials shall fairly meet the substance of the allegations denied. A pleader who intends in good faith to deny only a part or a qualification of an allegation shall specify so much of it as is true and material and deny only the remainder. The pleader may not generally deny all the allegations but shall make the denials as specific denials of designated allegations or paragraphs. 4:5-4. Affirmative Defenses; Misdesignation of Defense and Counterclaim A responsive pleading shall set forth specifically and separately a statement of facts constituting an avoidance or affirmative defense such as accord and satisfaction, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. If a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if the interest of justice requires, shall treat the pleading as if there had been a proper designation. 4:5-5. Effect of Failure to Deny Allegations in a pleading which sets forth a claim for relief, other than those as to the amount of damages, are admitted if not denied in the answer thereto. In every action brought upon a negotiable instrument, the authenticity of any signature or endorsement thereon shall be taken to be admitted unless the same is put in issue by the pleadings. Allegations in any answer setting forth an affirmative defense shall be taken as denied if not avoided in a reply; issue shall be deemed to have been joined upon allegations in an answer setting forth other matters. Allegations in a reply shall be taken as denied or avoided, and any defense thereto in law or fact may be asserted at trial. 4:5-6. Consistency A party may set forth 2 or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When 2 or more statements are made in the alternative and one of them, if made independently, would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. As many separate claims or defenses as the party has may be stated regardless of their consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in R. 1:4-8. 4:5-7. Pleadings to Be Concise and Direct; Construction Each allegation of a pleading shall be simple, concise and direct, and no technical forms of pleading are required. All pleadings shall be liberally construed in the interest of justice. 4:5-8. Pleading Special Matters (a) Fraud; Mistake; Condition of Mind. In all allegations of misrepresentation, fraud, mistake, breach of trust, willful default or undue influence, particulars of the wrong, with dates and items if necessary, shall be stated insofar as practicable. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally. (b) Conditions Precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to allege generally that all such conditions have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity, but when so made the party pleading the performance or occurrence has the burden of establishing it. (c) Pleading According to Legal Effect. Acts and contracts may be stated according to their legal effect, but in so doing the pleading should be such as fairly to apprise the adverse party of the state of facts which it is intended to prove; thus, an act or promise of a principal other than a corporation, if in fact proceeding from an agent known to the pleader, should be so stated. In pleading an official document or official act it is sufficient to allege that the document was issued or the act done in compliance with law. (d) Judgment. A judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or administrative agency or officer, may be alleged without stating matter showing jurisdiction to render it. (e) Time and Place. For the purpose of testing the sufficiency of a pleading, allegations of time and place are material and shall be considered like all other allegations of material matter. (f) Special Damage. Items of special damage claimed shall be specially stated, except that if a general demand for unliquidated damages is made pursuant to R. 4:5-2, the facts giving rise to any included claim for special damages shall be specially stated in lieu of the monetary claim therefor. RULE 4:6. DEFENSES AND OBJECTIONS: WHEN AND HOW PRESENTED; BY PLEADING OR MOTION; MOTION FOR JUDGMENT ON PLEADINGS 4:6-1. When Presented (a) Time; Presentation. Except as otherwise provided by R. 4:7-5(c) (cross claims), 4:8-1(b) (third-party joinder), 4:9-1 (answer to amended complaint), and 4:64-1(g) (governmental answer in foreclosure actions), the defendant shall serve an answer, including therein any counterclaim, within 35 days after service of the summons and complaint on that defendant. If service is made as provided by court order, pursuant to R. 4:4-4(b)(3), the time for service of the answer may be specified therein. Service of the answer shall be complete as provided by R. 1:5-4. A party served with a pleading stating a counterclaim or cross claim against that party shall serve an answer thereto within 35 days after the service upon that party. A reply to an answer, where permitted, shall be served within 20 days after service of the answer. (b) Time; Effect of Certain Motions. Unless the court fixes a different time period, the time periods prescribed in paragraph (a) of this rule are altered by the filing and service of a motion under R. 4:6 or for summary judgment under R. 4:46 or R. 4:69-2 as follows: (1) if the motion is denied in whole or part or its disposition postponed until trial, the responsive pleading shall be served within 10 days after notice of the courts action; (2) if a motion for a more definite statement is granted, the responsive pleadings shall be served within 10 days after the service of such statement. If notice is given a nonresident party demanding security for costs and the nonresident gives notice of the filing of the bond or the making of the deposit, the party making the demand shall then have the same time to plead as may have remained at the time of the service of the notice demanding the security. (c) Time; Extension by Consent. The time for service of a responsive pleading may be enlarged for a period not exceeding 60 days by the written consent of the parties, which shall be filed with the responsive pleading within said 60-day period. Further enlargements shall be allowed only on notice by court order, on good cause shown therefor. (d) Certificate of Service. The party filing the responsive pleading or the partys attorney shall certify thereon, or in an acknowledgment, proof or certificate of service, that the pleading was served within the time period allowed by R. 4:6 or other rule specified in the certificate. 4:6-2. How Presented Every defense, legal or equitable, in law or fact, to a claim for relief in any complaint, counterclaim, cross-claim, or third-party complaint shall be asserted in the answer thereto, except that the following defenses may at the option of the pleader be made by motion, with briefs: (a) lack of jurisdiction over the subject matter, (b) lack of jurisdiction over the person, (c) insufficiency of process, (d) insufficiency of service of process, (e) failure to state a claim upon which relief can be granted, (f) failure to join a party without whom the action cannot proceed, as provided by R. 4:28-1. If a motion is made raising any of these defenses, it shall be made before pleading if a further pleading is to be made. No defense or objection is waived by being joined with one or more other defenses in an answer or motion. Special appearances are superseded. If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion. 4:6-3. Required Motions; Preliminary Hearings Defenses (a) (e) and (f) in R. 4:6-2, whether made in an answer or by motion, shall be heard and determined before trial on application of any party, unless the court for good cause orders that the hearing and determination thereof be deferred until the trial. Defenses (b) (c) and (d) in R. 4:6-2 shall be raised by motion within 90 days after service of the answer, provided that defense has been asserted therein and provided, further, that no previous motion to which R. 4:6-6 is applicable has been made. 4:6-4. Motion for More Definite Statement or to Strike or Dismiss for Impropriety of Pleading (a) More Definite Statement. If a responsive pleading is to be made to a pleading which is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court not complied with within 10 days after notice of the order or within such other time as the court fixes, the court may strike the pleading to which the motion was directed or make such order as it deems appropriate. The statement shall become a part of the pleading which it supplements. (b) Impropriety of Pleading. On the courts or a partys motion, the court may either (1) dismiss any pleading that is, overall, scandalous, impertinent, or, considering the nature of the cause of action, abusive of the court or another person; or (2) strike any such part of a pleading or any part thereof that is immaterial or redundant. The order of dismissal shall comply with R. 4:37-2(a) and may expressly require, as a condition of the refiling of a pleading asserting a claimor defense based on the same transaction, the payment by the pleading party of attorneys fees and costs incurred by the party who moved for dismissal. 4:6-5. Motion to Strike for Insufficiency On motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, on motion made within 20 days after the service of the pleading upon the party, or upon the courts own initiative at any time, the court may order stricken from any pleading any defense insufficient in law. 4:6-6. Consolidation of Defenses A party making a motion under R. 4:6 may join with it the other motions herein provided for and then available. If such motion omits therefrom any defense or objections then available which R. 4:6 permits to be raised by motion, the party shall not thereafter make a motion based on any such omitted defenses or objections, except as provided in R. 4:6-7. 4:6-7. Waiver or Preservation of Defenses Defenses (b) (c) and (d) in R. 4:6-2 are waived if not raised by motion pursuant to R. 4:6-3 or if omitted from a previously made motion to which R. 4:6-6 is applicable. Defenses (e) and (f) and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered, or by motion for summary judgment or at the trial on the merits. Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the matter except as otherwise provided by R. 1:13-4. Note: Source-R.R. 4:12-8. Example of ANSWER, SEPARATE DEFENSES in a non- personal injury case: The defendant d1, doing business at d2 New Jersey, by way of Answer to the plaintiffs Complaint, says: 1. He admit the allegations of paragraph 1- 2. He admits all the allegations of paragraph 2 ...............and denies the remaining paragraphs. 3. He admits the allegations of paragraph 3 . 4. He denies the allegations of paragraph ........ WHEREFORE, Defendant demands judgment as follows: Dismissing the complaint, Denying all other requests by the plaintiff, for Counsel Fees to be Awarded in Favor of Defendant pursuant to NJSA 2A:15-59.1 and Against Plaintiff if Plaintiff does not immediately dismiss the Complaint and for such other relief as the Court may deem just and equitable. SEPARATE DEFENSES Defendants reserve the right to assert the following defenses at trial -The Complaint fails to state a claim upon which relief may be granted -The claims in the Complaint are barred by the principles of waiver, Estelle and Estelle - The defendant acted on reasonable grounds with legal justification and therefore, are not responsible to plaintiff in damages. -The claims set forth in the Complaint are barred by the Doctrine of Accord and satisfaction, failure of consideration, illegality and payment. - Breach of Contract - failure to Mitigate damages - Improper pleading by New Jersey Corporation which must be represented by Attorney at Law in Superior Court - Unconscionability of contract -Violation of Plain Language law - Lack of privity - Improper pleading not conforming to Court Rules Example of ANSWER, SEPARATE DEFENSES in a personal injury case: The defendant d1, doing business at ____, by way of Answer to the plaintiffs Complaint, says: 1. Defendant d1 admits the operation and denies the balance 2. Defendant d1 admits 3. Defendant d1 admits the allegations of paragraph 3 . 4. Defendant d1 denies the allegations of paragraph 4 WHEREFORE, Defendant d1 demands judgment as follows: Dismissing the complaint, Denying all other requests by the plaintiff, for Counsel Fees to be Awarded in Favor of Defendant pursuant to NJSA 2A:15-59.1 and Against Plaintiff if Plaintiff does not immediately dismiss the Complaint and for such other relief as the Court may deem just and equitable. SEPARATE DEFENSES Defendant d1 reserve the right to assert the following defenses at trial: -The Complaint fails to state a claim upon which relief may be granted - The defendant acted on reasonable grounds with legal justification and therefore, are not responsible to plaintiff in damages. - failure to Mitigate damages - Improper pleading not conforming to Court Rules -Defendant is free of negligence which was the proximate cause of the injuries and damages alleged -Contributory negligence -Comparative negligence, per NJSA 2A:15-5.1 -Any and all Damages and/or personal injuries sustained by the plaintiff were the result of the acts and negligence of third persons or parties over whom the defendant exercised no control. -The complaint is barred by the applicable Statute of Limitations -The alleged incident complained of resulted from circumstances and conditions beyond the control of the defendant. -The complaint alleges no violation of any duty that the defendant may have owed to the plaintiff. -The damages alleged in the Complaint are barred by the Entire Controversy Doctrine. -All claims are barred by the Workers Comp Act NJSA 34:15-8. -The defendant reserves the right to interpose such other defenses and objections as continuing investigation may disclose. -The injuries and damages alleged in the Complaint were caused by and arose out of risks which the plaintiff had full knowledge of and assumed. -Defendant is immune from liability by NJSA 39:6A-8 - The action is barred by NJSA 39:6A-1 - The action is barred by the verbal threshold statute. CERTIFICATION THAT ANSWER FILED WITHIN TIME I hereby certify the Answer was served within the time permitted by law. I certify that the matter in controversy is not the subject of any other action or arbitration proceeding, now or contemplated, and that no other parties should be joined in this action. R.4:5-1. ANSWER TO ALL CROSS CLAIMS The defendant d1 by way of any and all Cross claims, past, present and future, says: The defendant d1, denies each and every material allegation of the cross claims filed against him. CONCLUSION If a lawsuit is filed, immediately schedule a consultation with an attorney. Our office represents parties in Personal Injury and Litigation cases. If facing a lawsuit, immediately schedule an appointment with a civil attorney. Dont rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and business is on the line, hire the best attorney available. http://www.njlaws.com/answercivil.html?id=2&a= |
2006 Law Amends the State's Guardianship Law
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Estate Planning for Alzheimer Patients and Guardianship of Disabled Adults
| Compiled by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section If a person has been diagnosed with Alzheimer's disease, it is important to immediately conduct Estate Planning with the assistance of an attorney. Close to 4 million Americans are thought to have Alzheimer's disease - yet half of them remain undiagnosed. It's all too easy to mistake many early Alzheimer's disease symptoms for natural signs of aging. Initial symptoms, like forgetfulness, tend to be so subtle that they can easily be dismissed as "just getting old." Symptoms can also vary widely among individuals. Recognizing and treating Alzheimer's disease early is vital. Early diagnosis of Alzheimer's disease is important because that is when the most can be done to slow the progression of symptoms. Early treatment can have a significant effect on maintaining a patient's current level of ability. Find help for yourself. Many people concerned about Alzheimer's disease discover that they need additional answers. Your doctor is your primary source of information about Alzheimer's disease. If a person has been diagnosed with Alzheimer's disease, but is still competent, a formal Power of Attorney, Will and Living Will should be prepared immediately. Generally, many attorneys will require: 1. A note from the Doctor indicating the person is competent to sign a Power of Attorney [and Will if the Will has not yet been prepared] 2. The client to specifically advise the attorney they want to appoint the specific person to handle their financial affairs. [The attorney cannot rely on a family member saying what the client/ patient wants.] Prior to an individual being unable to manage his or her life as a result of a mental or physical disability, legal planning should be done. If a legally prepared Power of Attorney was signed, a trusted family member, friend or professional can legally act on that person's affairs. If a Power of Attorney was not signed, an attorney may be retained to file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs. What is a Power of Attorney? A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. Therefore, the doctor often must determine if the recently diagnosed Alzheimer patient is competent to sign a Power of Attorney. The term "durable" in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal. Why is Power of Attorney so important? Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. The lack of properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These require formal proceedings and are expensive in court. This means requirement of lawyers to prepare and file the necessary papers and doctors to provide medical certifications or testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. Advance preparation of the Power of Attorney can avoid the inconvenience and expense of legal Guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late. Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantor's bills and to handle the grantor's affairs during the inability of the grantor to do the same. Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse's signature. If a valid Power of Attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid. Without a Power of Attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making. According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be a legally incompetent/ incapacitated person." p11 1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11 Legislation (P.L. 1997, c 379) changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents. New Jersey Lawyer March 23, 1998 2. What rights does a incompetent/ incapacitated person lose? Unless a Court orders otherwise, a ward/ incompetent/ incapacitated person does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent/ incapacitated person also loses the right to marry. 3. How does somebody become the guardian of another? Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent/ incapacitated person or are parents of an unmarried incompetent/ incapacitated person can choose who will become the guardian after the guardians die and include a clause designating their successor in their Wills. Disability Laws p12. Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent/ incapacitated person plus reasons why the incompetent/ incapacitated person is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent/ incapacitated person and prepare a report to the Court. The court costs and legal fees often exceeds $4,000. 4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent/ incapacitated person who will act to protect the incompetent/ incapacitated person's best interests can be guardian. When a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian. 5. What are the rights of the proposed incompetent/ incapacitated person prior to hearing? The proposed incompetent/ incapacitated person is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing. 6. Is court approval required to sell real estate if someone is declared incompetent/ incapacitated? Yes. Your attorney can discuss transferring certain assets to qualify for Medicaid. Elder law articles are available on the website KennethVercammen.com To schedule a consultation regarding Estate Planning for Alzheimer patients or Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500 Edison, NJ Kenneth A. Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Elder Law and litigation topics. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. |
NJSA 26:2B-17 ATRA Alcohol Treatment and Rehabilitation Act
| Our office represents people charged with criminal offenses and disorderly offenses. We provide representation throughout New Jersey. Criminal charges can cost you. If convicted, you can face high fines, jail, Probation and other penalties. Don't give up! Our Law Office can provide experienced attorney representation for criminal violations. Our website KennethVercammen.com provides information on criminal offenses we can be retained to represent people. If someone is charged with a criminal or municipal offense and was intoxicated, they should seek professional help. If they seek professional help, occasionally a Motion can be made to hold the charges while the person seeks treatment. 26:2B-7 Public policy under ATRA It is the policy of the State of New Jersey that alcoholics and intoxicated persons may not be subjected to criminal prosecution because of their consumption of alcoholic beverages, but rather should be afforded a continuum of treatment in order that they may lead normal lives as productive members of society. 26:2B-8. Definitions The following words as used in this act shall, unless the context requires otherwise, have the following meanings: Administrator means the person in charge of the operation of a facility, or his designee. Admitted means accepted for treatment at a facility. Alcoholic means any person who chronically, habitually or periodically consumes alcoholic beverages to the extent that: a. such use substantially injures his health or substantially interferes with his social or economic functioning in the community on a continuing basis, or b. he has lost the power of self-control with respect to the use of such beverages. Authorized persons means persons who serve as volunteer first aid or ambulance squad members, para-professional medical personnel and rehabilitated alcoholics. Commissioner means the Commissioner of Health. Department means the State Department of Health. Director means the Director of the Division of Alcoholism. Division means the Division of Alcoholism. Facility means any public, private place, or portion thereof providing services especially designed for the treatment of intoxicated persons or alcoholics; including, but not limited to intoxication treatment centers, inpatient treatment facilities, outpatient facilities, and residential aftercare facilities. Incapacitated means the condition of a person who is: a. as a result of the use of alcohol, unconscious or has his judgment so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment, b. in need of substantial medical attention, or c. likely to suffer substantial physical harm. Independent physician means a physician other than one holding an office or appointment in any department, board or agency of the State of New Jersey or in any public facility. Intoxicated person means a person whose mental or physical functioning is substantially impaired as a result of the use of alcoholic beverages. Patient means any person admitted to a facility. Private facility means a facility other than one operated by the Federal Government, the State of New Jersey or any political subdivision thereof. Public facility means a facility operated by the State of New Jersey or any political subdivision thereof. Treatment means services and programs for the care or rehabilitation of intoxicated persons and alcoholics, including, but not limited to, medical, psychiatric, psychological, vocational, educational, recreational, and social services and programs. NJSA 26:2B-17. Violators of municipal ordinance or disorderly persons not arrested for misdemeanor; taking to facility; determination of alcoholism; commitment; request; stay of criminal proceeding; hearing; treatment; discharge; report to court; sentence; credits NJSA 26:2B-17.: Any person who is arrested for a violation of a municipal ordinance, or for a disorderly persons offense, and who is not also arrested for a misdemeanor, and who the arresting police officer has reasonable cause to believe is intoxicated, may be taken by a police officer directly to an intoxication treatment center or other appropriate facility. To determine whether or not such person is intoxicated, the police officer may request the person to submit to any reasonable test, including, but not limited to, tests of his coordination, coherency of speech, and breath. The administrator of any intoxication treatment center, or of any other facility, shall cause any such person to be examined by a physician or by a medically competent individual designated by the department and under the supervision of a physician. If the physician or any other medically competent individual designated by the department determines upon examination that such person is intoxicated, and the administrator determines that adequate and appropriate treatment is available, the person shall be admitted. Any such person may be detained at the center or other facility until he is no longer intoxicated, but in any event, not longer than 48 hours from the date of admission. At such time as the person is to be discharged from the facility, be shall be informed by the administrator that if he is an alcoholic who would benefit by treatment he may, in the discretion of the court, be afforded treatment in lieu of prosecution, and that if he so chooses he may be examined at the facility for the purpose of determining whether he is an alcoholic who would benefit by treatment. If the person requests an examination, he shall be examined by a physician at the facility during a period of time not to exceed 48 hours. The police shall maintain such security conditions as may be necessary. Prior to releasing the person from the center or other facility, the administrator shall notify the police who shall transport him therefrom for proceedings in the case. When a person who is arrested for a violation of a municipal ordinance, or disorderly persons offense, and who is not also arrested for a misdemeanor, is brought before the court on such charge, the court shall inform him that he is entitled to request a medical examination to determine whether or not he is an alcoholic if he has been admitted to a facility pursuant to the provisions of the preceding paragraph and has not received a medical examination by a physician. The court shall further inform the defendant of the consequences which follow a determination by a physician that he is an alcoholic who would benefit by treatment. Any request for an examination shall be in writing. If the person makes such request, the proceedings shall be stayed for the period during which the request is under consideration by the court. If the defendant requests an examination, the court shall appoint a physician to conduct the examination at an appropriate location designated by it. In no event shall a request for an examination, any statement made by the defendant during the course of an examination or any finding of a physician pursuant to the provisions of this section be admissible against the defendant in any proceeding. A physician who conducts an examination pursuant to the provisions of this section, shall determine whether or not the defendant is an alcoholic who would benefit by treatment. The physician shall report his findings to the court together with the facts upon which the findings are based and the reasons therefor as soon as possible but in any event not longer than 3 days after the completion of the examination. If the physician reports that the defendant is an alcoholic who would benefit by treatment, the court shall inform the defendant that he may request commitment to the division and advise him of the consequences of the commitment. If the defendant requests commitment, and if the court finds that the defendant is an alcoholic who would benefit by treatment, the court may stay the criminal proceeding and commit the defendant to the division as an inpatient or as an outpatient, whichever the court deems appropriate, for a specified period. The term of inpatient treatment shall not exceed 30 days, the term of outpatient treatment shall not exceed 60 days, and the total combined period of commitment, including both inpatient and outpatient treatment, if both are ordered, shall not exceed 90 days. The court shall inform the defendant that if he is committed the proceeding will be stayed for the term of the commitment. In determining whether or not to grant the request for commitment, the court shall consider the report of the physician, the nature of the offense with which the defendant is charged, the past criminal record, if any, of the defendant, and any other relevant evidence. If the court decides that the defendant's request for commitment should be granted, the court shall commit the defendant to the division if the division reports that adequate and appropriate treatment is available at a facility; provided, however, that if the court determines that commitment should be granted and the defendant is charged with a first offense, the proceedings shall be stayed until adequate and appropriate treatment is available at a facility. In cases where the defendant is not charged with a first offense and the division reports that adequate and appropriate treatment is not available, the court may, in its discretion, order that the stay of the proceeding remain outstanding until such time as adequate and appropriate treatment is available. As a condition to the issuance of any commitment order by the court pursuant to the provisions of this section, the defendant shall consent in writing to the terms of the commitment. If the physician reports that the defendant is not an alcoholic who would benefit by treatment, the defendant shall be entitled to request a hearing to determine whether he is an alcoholic who would benefit by treatment. Thereupon the court may, of its own motion, or shall upon the request of the defendant or his counsel, appoint an independent physician to examine the defendant and to testify at the hearing. If the court determines that the defendant is an alcoholic who would benefit by treatment, the procedures and standards applicable to a defendant who is determined by the court, following the report of the first examining physician to be an alcoholic who would benefit by treatment, shall apply to the defendant. If the court does not order that the defendant shall be afforded treatment in lieu of prosecution pursuant to the provisions of this section, the stay of the proceedings shall be vacated. At any time during the term of commitment, the administrator may transfer any inpatient to an outpatient program if he finds that the patient is a proper subject for outpatient treatment; provided, however, that the administrator may retransfer the patient to an inpatient program if he finds that the person is not suitable for outpatient treatment. Any patient committed to the division pursuant to this section shall be discharged from the facility to which the division has caused him to be admitted if at any time the administrator determines that treatment will no longer benefit him; provided, however, that such patient shall in any event be discharged at the termination of the period of commitment specified in the court order. At the end of the commitment period, when the patient is discharged, or when the patient terminates treatment at the facility, whichever first occurs, the director shall report to the court on whether or not the defendant successfully completed the treatment program, together with a statement of the reasons for his conclusion. In reaching his determination of whether or not the defendant successfully completed the treatment program, the director shall consider, but shall not be limited to, whether the defendant cooperated with the administrator and complied with the terms and conditions imposed on him during his commitment. If the report states that the defendant successfully completed the treatment program, the court shall dismiss the charges pending against the defendant. If the report does not so state, or if the defendant has not completed the term of commitment ordered by the court, then, based on the report and any other relevant evidence, the court may take such action as it deems appropriate, including the dismissal of the charges or the revocation of the stay of the proceedings. In the event that the court convicts a defendant who has been committed in lieu of prosecution pursuant to the provisions of this section and sentences him to a term of incarceration, the court shall reduce the term of incarceration by the period during which the defendant was afforded treatment in lieu of prosecution pursuant to this section. The State, municipal and local police shall, in cooperation with the department, provide temporary security at facilities to which persons are taken pursuant to this section, where it is necessary that such security be provided for the person arrested. 26:2B-18. Person under treatment at facility; subjection to supervisory powers of administrator Each person who receives treatment at a facility shall be subject to the supervisory powers of the administrator exercised in accordance with rules and regulations of the department. 26:2B-19. Rights of juveniles All rights afforded any person under this act shall apply to juveniles as may be consistent with present statutory law applying to minors. CONCLUSION If charged with any criminal offense, immediately schedule an appointment with a criminal trial attorney. Don't rely on a real estate attorney, public defender or a family member who took a law class in school. When your life and job is on the line, hire the best attorney available. http://www.njlaws.com/alcohol_treatment_and_rehabilitation_act.html?id=334&a= |
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