Name Change | |
Name Change Questionnaire Please type up & fill out completely and email to vercammenlaw@njlaws.com, fax or mail back. If you email, typing name and details is best. Save as word doc or text, not pdf. This form is extremely important. Your accuracy and completeness in responding will help me best represent you. All sections and information must be filled out prior to discussing with the attorney. Cannot be handwritten since we cannot cut and paste into the forms we need to file electronically with the court.. Legal Fee $1,900, due within 7 days Consult only $200
NAME __________________________________________________
Name of Birth Certificate if different _________________________
ADDRESS ______________________________________________
CITY ______________________ STATE ____ZIP _____________
CELL-PHONE ___________________________________
E-MAIL ADDRESS ___________________________________________ 1. Applicant is the plaintiff and resides at the address? ___________ 2. The applicant is a citizen of the United States of America. YES___ NO___ 3. Plaintiff's social security number is __________________________. 4. Applicant was born on _______________________ in the city/state of ________________. 5. Applicant is the son/daughter of ______________ and _________________ (A copy of the birth certificate is attached). 6. Plaintiff was raised by _______________. Applicant's current occupation is that of ______________. rev 4/1/20
7. Plaintiff has since childhood been identified by the name of ____________________ 8. Has Applicant been married? YES___ NO____
9. No judgments have ever been recovered against the applicant; no bankruptcy or insolvency proceedings have been instituted affecting the applicant; and no suits are now pending against the applicant. Yes___ No_____
10. Applicant has not been convicted of a crime within the last 10 years. There are not any criminal charges pending against applicant. Therefore, no notice is required to the County Prosecutor or Attorney General. Yes___ No_____ 11. This application is not made with the intent to avoid creditors or criminal prosecution or for other fraudulent purpose. Yes___ No_____ 12. Plaintiff - has ___ has not ___ made previous application to assume another name. 13. Applicant desires to change applicant's name to _________ 14. Plaintiff requests this name change for the following reasons: A. ___________________________________________
_____________________________________________
_____________________________________________
Social Security number will be needed to prepare the Complaint. Don’t write on this form yet.
Name Change : SERVICES TO BE PROVIDED AND LEGAL FEE 1. Office interview with client, office consult fee is $150.00, which is included in the Name Change fee. 2. Review Name Change Questionnaire filled out by client. 3. Obtain information such as name, address and telephone number. 4. Obtain information regarding details of Name Change 5. Attend to opening of file. 6. Preparation of draft Verified Complaint Including Certification of Plaintiff for Name Change 7. Preparation of Order Fixing Date of Hearing for Name Change 8. Prepare letter to client enclosing drafts for client to carefully read. 9. Preparation of Newspaper Notice 10. Preparation of letter to The Home News & Tribune 11. Preparation of Final Judgment for Name Change 12. Preparation of Civil Case Information Statement CIS 13. Travel to County Courthouse and appearance in front of Superior Court Judge 14 Preparation of letter to Department of Treasury 15 Preparation of letter to Vital Statistics 16. Preparation of letter to Motor Vehicle Commission DMV with Judgment 17 Office conference with client 18. Provide free information brochures on Wills, Power of Attorney, Living Wills, Answers to Questions about Probate, Website/ Elder Law on the Internet website www.njlaws.com other brochures. 19. Provide bi-weekly computer email newsletter with updates on Probate, Insurance, and Free Legal Information. 20. Preparation of end of case letter to client Legal fee for Name Change- $ 1,900 includes court appearance. Please make Checks payable to Vercammen Law. Visa, Master Card and American Express accepted. Please pay the front desk legal secretary at first meeting. Payment is required prior to any documents being drafted. Other costs: 2. Superior Court Filing Fee $250.00 , either separate check to Vercammen Law or credit cars 3. Newspaper Publication Fee of Hearing Notice $ _________ approx $135 Depends on newspaper 4 Newspaper Publication Fee of Judgment approving Name Change $ _________ approx $135 Depends on newspaper
The newspaper will send a bill and you prepare a check payable to newspaper, not to exceed $190 usually the Home News Tribune, 5. Check for $50.00 payable Treasurer, State of NJ for each certified copies after Order granted 6. Department of Treasury $50 Payable to Department of Treasury to file Please write out checks and give to law office. These checks are needed to file documents. This is not included in the legal fee. [Note- After the Complaint is typed, there is a minimum $50.00 additional charge for each change not set forth in the Questionnaire filled out by clients at the initial consult. The Complaint needs to be signed within 21 days of initial consult or additional fee will be charged. There is an additional $50.00 charge for canceled, rescheduled, or missed signing appointments. The fee paid is non refundable.
New Jersey Rules and statute have set up a detailed procedure for someone to legally change their first name, last name or both. Using an experienced attorney, you can have a new name approved by the Superior Court with only one court appearance. Sections 2A:52-1 et seq. of the New Jersey Statutes, and Rule 4:72 of the New Jersey Court Rules set forth certain legal requirements your attorney most follow.
FILING THE COMPLAINT The complaint must be signed by the applicant in front of their attorney. Your attorney will prepare a Order Fixing Hearing for Name Change. The complaint and Order are filed in the Superior Court. The Order will be signed by the Judge setting forth the date to come to court and other legal requirements, such as publication and notice. Your attorney will submit the Order for Hearing to be published in a newspaper of general readership, such as the Home News Tribune. Proof of publication must be filed with the court. A proposed Judgment for Name Change is forwarded to the Judge to be signed if the approved.
HEARING AND JUDGMENT FOR NAME CHANGE On the date selected by the Court the matter will be opened to the Court on the Complaint of the Plaintiff, the plaintiff having appeared by their attorney seeking a judgment allowing him/her to assume the new name. Following questioning of the applicant and it appearing from the Verified Complaint that the plaintiff complied with the requirements of the statute in such case made and provided, and it further appearing that after notice of the hearing was duly published, no reasonable objections were made thereto, and for good cause appearing, the Court should approve the name change. However, the work by your attorney is still not done. The Judgment for Name Change must be signed the Judge. Your attorney shall cause to be published in the Home News & Tribune or another newspaper a copy of the Judgment; Within 20 days after the entry of the Judgment, your attorney will cause to be filed a certified copy of the judgment, together with an affidavit of publication, with the Clerk of Middlesex County, as well as the Secretary of the State of New Jersey, pursuant to the statute and rules. The Applicant should forward copies of the Courts Judgment for Name Change to change their name on legal documents and identification such as Drivers License, Social Security Card and birth certificate.
After the court signs the Final Judgment. You will need to do the following: STEP 15: Order Two Certified Copies With a Raised Seal of the Final Judgment. You will need a certified copy with a raised seal of the Final Judgment to be sent to both the Department of Treasury (Step 16) and the Registrar of Vital Statistics (Step 17). You must also present a certified copy of the Final Judgment in person at any Motor Vehicle Agency or Regional Service Center (Step 18). The fee for a certified copy with a raised seal is $25.00.
STEP 16: Send a copy of the certified Final Judgment to the Department of Treasury. You must send a certified copy with a raised seal of the Final Judgment to the Department of Treasury within 45 days after the date of the Judgment. You must include a check or money order payable to the Treasurer, State of New Jersey in the amount of $50. Mail the certified copy of the Final Judgment with the check or money order and a stamped self-addressed envelope to: Department of Treasury Division of Revenue Judgment Name Change Unit P. O. Box 453 Trenton, NJ 08646
STEP 17: Notify the Registrar of Vital Statistics of the State. You must send a certified copy with a raised seal of the Final Judgment to the Registrar of Vital Statistics of the State in which you were born. The Office of the Registrar is located in the capital city of the State in which you were born. Check to see if the office requires a fee. If you were born in New Jersey, the address for this office is: Bureau of Vital Statistics Attn: Vital Records Modifications Unit P. O. Box 370 Trenton, NJ 08625 In New Jersey there is a $2.00 fee to process the legal name change. There is also a $25.00 fee if you want to receive a corrected birth certificate. Checks or money orders should be made payable to the Treasurer, State of New Jersey. There is a $2.00 fee for each additional copy of the birth certificate.
STEP 18: Notify the Motor Vehicles Commission. If you are a licensed driver, a registered owner of a vehicle, or possesses a handicapped or non-driver identification card, you must present the Final Judgment in person at any Motor Vehicle Agency or Regional Service Center within two weeks of the date of the Final Judgment. Additional information is available at njmvc.gov regarding the list of acceptable documents to satisfy the 6 points of
identification. |
Tuesday, November 3, 2020
Name Change in New Jersey
DMV/MVC and Points
DMV/ MVC and Points |
Kenneth Vercammens Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. Traffic Fines, Points, Jail. 39:4-49.1 Operation of a motor vehicle while in possession of controlled dangerous substance- Fine and 2 years suspension of drivers license $50 Plus MVC/DMV restoration fee; plus additional car insurance eligibility points. 39:4-50 Operating under the influence- DWI (See chart at KennethVercammen.com) Plus MVC/DMV points; plus additional car insurance eligibility points. 39:4-50.2 Refusal to undergo breathalyzer test- (See chart at KennethVercammen.com) 39:4-50.14 Operation of motor vehicle by person whose blood alcohol is between .01% and .10% and is under the legal age to purchase alcoholic beverages- Loss of license for not less than 30 days nor more than 90 days and perform community service for not less than 15 days nor more than 30 days. In addition, must satisfy program and fee requirements of the IDRC or participate in a program of alcohol education and highway safety. Penalties shall be in addition to the penalties which the court may impose under N.J.S.A. 2C:33-15, N.J.S.A. 33:1-81, N.J.S.A. 39:4-50, or any other law. See DWI fines and penalties at KennethVercammen.com. 39:4-51a Consumption of alcoholic beverage by operator or passenger- First offense: $200 Second or subsequent offense: Fine $250 or 10 days community service 39:4-51b Possession of open container of alcohol in passenger compartment- First offense: $200 Subsequent offense: Fine $250 or 10 days community service 39 :4-52 Racing on highway- First offense $25-$100 5 MVC/DMV points, 5 car insurance points 39:4-66.2 Operation of motor vehicle on public or private property to avoid traffic signal- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and violation stays on MVC/DMV abstract forever and 2 additional car insurance points and increase in car insurance, usually for three years. 39:4-81 Failure to obey traffic control device- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points, usually for three years. 39:4-82 Failure to keep right- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points, usually for three years. 39:4-82.1 Failure to drive on right-hand roadway- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points, usually for three years. 39:4-83 Failure to keep to right at intersection- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points, usually for three years. 39:4-84 Failure to pass to right when proceeding in opposite direction- Fine or imprisonment not exceeding 15 days, or both $50-$200 5 MVC/DMV points and 5 additional car insurance points. Also, Judge/Magistrate can suspend drivers license. 39:4-85 Failure to pass to left when overtaking- Fine or imprisonment not exceeding 15 days, or both $50-$200 4 MVC/DMV points and 4 additional car insurance points. Also, Judge/Magistrate an suspend Drivers license. 39:4-85.1 Wrong way on one-way street- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points, usually for three years. 39:4-86 Failure to overtake and pass properly- Fine or imprisonment not exceeding 15 days, or both $50-$200 4 MVC/DMV points and 4 additional car insurance points. 39:4-87 Failure to give overtaking vehicle right of way- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-88 Failure to drive properly in marked lanes- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-89 Following vehicle too closely- Fine or imprisonment not exceeding 15 days, or both $50-$200 5 MVC/DMV points and 5 additional car insurance points. Also, Judge/Magistrate can suspend drivers license. 39:4-90 Failure to yield right of way at intersection- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-90.1 Entering or leaving limited access highways improperly- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-91 Failure to yield right of way to emergency vehicles- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-92 Failure to pull over for emergency vehicles and following an emergency vehicle too closely- Fine or imprisonment not exceeding 15 days, or both $50-$200 39:4-96 Reckless driving- First offense: Fine or imprisonment not exceeding 60 days, or both $50-$200 Second or subsequent offense: Fine or imprisonment not exceeding 3 months, or both $100-$500 5 MVC/DMV points and 5 additional car insurance points. Also, Judge/Magistrate can suspend drivers license. 39:4-97 Careless driving- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-97a Motor vehicle operation causing property damage- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-97.1 Slow speed as to block traffic- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-97.2 Operating a motor vehicle in an unsafe manner, endangering persons or property First offense; $250 surcharge (for offenses occuring on or after July 1, 2004) $50 $150 Second offense; $250 surcharge (for offense occuring on or after July 1, 2004) $100 $250 Third or subsequent offense; $250 surcharge (for offenses occuring on or after July 1, 2004) $200 $500 39:4-98 Speeding- Fine or imprisonment not exceeding 15 days, or both $50-$200, double fine on certain highways 1-14 mph over limit: 2 points, 15-29 mph over limit: 4 points, 30 or more mph over limit: 5 points Judge/Magistrate can suspend drivers license for speeding. Also, in 65 mph zone, fines are doubled 39:4-115 Failure to make proper turn- Fine or imprisonment not exceeding 15 days, or both $50-$200 3 MVC/DMV points and 3 additional car insurance points. 39:4-119 Failure to observe flashing traffic signals- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-122 Failure to obey whistle of police officer- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-123 Failure to make proper turn- Fine or imprisonment not exceeding 15 days, or both $50-$200 3 MVC/DMV points and 3 additional car insurance points. 39:4-124 Failure to turn as indicated by buttons or markers at intersection- Fine or imprisonment not exceeding 15 days, or both $50-$200 3 MVC/DMV points and 3 additional car insurance points. 39:4-125 U-Turn on curve or grade where view obstructed or No-U-Turn sign- Fine or imprisonment not exceeding 15 days, or both $50-$200 3 MVC/DMV points and 3 additional car insurance points. 39:4-126 Failure to signal before starting, turning or stopping- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 3 additional car insurance points. 39:4-127 Backing or turning in street- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-127.1 Failure to stop at railroad crossings- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points. 39:4-127.2 Failure to stop at approaches to movable span bridges- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 additional car insurance points 39:4-128.1 Passing school bus while picking up or discharging- First offense: Fine or imprisonment not exceeding 15 days or 15 days community service, or both $100. Community service may be collecting trash cans or working at recycling center or landfill. Subsequent offense: Fine or imprisonment not exceeding 15 days, or both $250 none 5 MVC/DMV points and 5 additional car insurance points. 39:4-129(a) Leaving the scene of accident involving injury or death- First offense: Fine or 180 days imprisonment, or both, and suspension of driving privileges for 1 year from date of conviction $2500-$5000 Imprisonment shall be imposed only if injury to another person. 8 points. Subsequent offense: Fine or 180 days imprisonment from date of conviction, or both, and permanent forfeiture of drivers license $1000-$2000 Imprisonment shall be imposed only if injury to another person. 39:4-129(b) Leaving the scene of accident involving damages to attended vehicle or property- First offense: Fine or imprisonment not exceeding 30 days, or both, and suspension of driving privileges for six months from date of conviction $200-$400. Subsequent offense: Fine or imprisonment not less than 30 days nor more than 90 days, or both, and suspension of driving privileges for 1 year from date of conviction $400-$600 2 MVC/DMV points and 2 car insurance points. 39:4-129(d) Leaving the scene of accident involving damages to unattended vehicle or property- First offense: Fine or imprisonment not exceeding 30 days, or both, and suspension of driving privileges for six months from date of conviction. $200 $400 Subsequent offense: Fine or imprisonment not less than 30 days nor more than 90 days, or both, and suspension of driving privileges for 1 year from date of conviction. $400-$600 2 MVC/DMV points and 2 car insurance points 39:4-130 Failure to report accident- $30-$100 39:4-144 Failure to obey Stop or Yield Right of Way signs- Fine or imprisonment not exceeding 15 days, or both $50-$200 2 MVC/DMV points and 2 car insurance points 39:6B-2 Failure to carry motor vehicle insurance coverage- First offense: Fine and a period of community service as determined by the court, and suspension of driving privileges for 1 year $300-$1000 Community service can be working at recycling or landfill. Subsequent offense: Fine and shall be subject to 14 days imprisonment, and 30 days community service and suspension of driving privileges for 2 years from date of conviction $5000 Community service can be working at recycling or landfill. .NJ.A.C. 13:19-10.2 Point Accumulation; period of suspension (a) The Director shall, except for good cause, suspend a persons license to operate a motor vehicle and/or motorized bicycle in accordance with the following schedule: POINTS ACCUMULATED PERIOD OF SUSPENSION 12 to 15 points in a period of two years or less; 30 days 16 to 18 points in a period of two years or less; 60 days 19 to 21 points in a period of two years or less; 90 days 22 to 24 points in a period of two years or less; 120 days 25 to 27 points in a period of two years or less; 150 days 28 or more points in a period of two years or less; not less than 180 days 15 to 18 points in a period greater than two years; 30 days 19 to 22 points in a period greater than two years; 60 days 23 to 26 points in a period greater than two years; 90 days 27 to 30 points in a period greater than two years; 120 days 31 to 35 points in a period greater than two years; 150 days 36 or more points in a period greater than two years; not less than 180 days 12 to 14 points in a period greater than two years; 30 days (b) For good cause shown, the Director may in his discretion permit a person to attend a driver improvement course of the Division of Motor Vehicles in total or partial satisfaction of a period of suspension imposed under (a) above. In exercising his discretion, the Director shall consider the persons driving record prior warnings or driver improvement school attendance maturity and any other aggravating or mitigating factor. |
Estate Planning for Multiple Sclerosis Patients and Guardianship of Disabled Adults
Estate Planning for Multiple Sclerosis 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 Multiple Sclerosis (MS), it is important to immediately conduct Estate Planning with the assistance of an attorney. Many Americans are thought to have Multiple Sclerosis - yet half of them remain undiagnosed. It's all too easy to mistake many early Multiple Sclerosis symptoms for natural signs of aging. Symptoms can also vary widely among individuals. Recognizing and treating Multiple Sclerosis early is vital. Early diagnosis of Multiple Sclerosis 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 Multiple Sclerosis discover that they need additional answers. Your doctor is your primary source of information about Multiple Sclerosis. If a person has been diagnosed with Multiple Sclerosis, and is still mentally 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 Multiple Sclerosis 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 Parkinson's patients or Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500 Edison, NJ |
Municipal Law
Municipal Law |
Kenneth Vercammen’s Law Office helps people with traffic/ municipal court tickets. We provide representation on most Central New Jersey traffic cases. Motor vehicle violations and criminal charges can cost you. If you plead guilty by mail or in court for almost all traffic tickets, you will have to pay fines in court and will later receive points on your drivers license. Both the DMV and your car insurance company will impose surcharges and eligibility points for three years. 6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 9. You must pay restitution if the court finds there is a victim who has suffered a loss. 10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 13. You lose the presumption against incarceration in future cases. 2C:44-1 14. You may lose your right to vote.
KENNETH VERCAMMEN & ASSOCIATES, PC About the Author
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Municipal Court Representation
Municipal Court Representation |
Kenneth Vercammen’s Law Office helps people with traffic/ municipal court tickets. We provide representation on most Central New Jersey traffic cases. Motor vehicle violations and criminal charges can cost you. If you plead guilty by mail or in court for almost all traffic tickets, you will have to pay fines in court and will later receive points on your drivers license. Both the DMV and your car insurance company will impose surcharges and eligibility points for three years. 6. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 9. You must pay restitution if the court finds there is a victim who has suffered a loss. 10. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 11. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 13. You lose the presumption against incarceration in future cases. 2C:44-1 14. You may lose your right to vote.
KENNETH VERCAMMEN & ASSOCIATES, PC About the Author
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Municipal Court - Winning Strategies
Municipal Court - Winning Strategies |
Winning Strategies in Municipal Court seminar April 20, 2020 Monday, 5:30pm-9:05pm NJ Law Center, New Brunswick
Topics: Major changes to DWI law effective Dec 1, 2019 New expungement law 2020 Speakers: Kenneth A. Vercammen, Esq., Author ABA Criminal Law Forms Norma Murgado Elizabeth & Woodbridge Prosecutor, Lorraine Nielsen, Prosecutor Milltown, East Brunswick, North Brunswick Joshua Reinitz, Esq., John Menzel, Esq., Program agenda 5:30 Recent case law, New Expungement law, Vote for Legalized Weed- Ken Vercammen, Esq.
5:50 Initial client interview; getting retained; dealing with the prosecutor – Ken Vercammen, Esq.
6:20 Driving While Suspended – Joshua Reinitz, Esq.
6:50 Drug Cases, DREs and what not to do to annoy the prosecutor- Lorraine Nielsen, Esq.
7:30 Immigration, Assault and miscellaneous proceedings – Norma Murgado, Esq.
7:45 DWI/Under the Influence of Drugs- John Menzel, Esq. with prosecutorial response 8:15 Alcotest/Ignition Locks/Alcotest Refusal – John Menzel, Esq. with prosecutorial response 8:45 DWI Point-Counterpoint – John Menzel, Esq. and Norma Murgado, Esq. 9:00 question & answer New Jersey’s #1 guide to handling Municipal Court matters. This information-packed program is designed for attorneys who do not concentrate in municipal court law, including general practitioners seeking to expand into this practice area, and not novice attorneys looking to create a niche practice. Seasoned municipal court lawyers will also be able to brush up and enhance their skills. Hear a panel of NJ respected municipal court practitioners give insight into winning strategies for the cases you are handling. You’ll quickly be able to represent clients in a wide range of cases you may have otherwise referred to others. Gain confidence in your ability to handle municipal court law matters - make an investment in your legal career and register today! Sponsor NJICLE NJ Institute for Continuing Legal Education, a Division of the NJSBA (732) 214-8500 CustomerService@njsba.com
General Tuition: $170 Presented in cooperation with the NJSBA Municipal Court Practice Section Seminar ICMCP096219
NJ Law Center 1 Constitution Sq. New Brunswick, NJ 08901 https://tcms.njsba.com/personifyebusiness/njicle/CLEPrograms/NJICLEEventsCalendar/MeetingDetails.aspx?productId=49807166 https://www.facebook.com/events/2583311788462501 Includes 300 page book, which is also available for purchase after program]
The Supreme Court on November 18 remanded State v Olenowski to a Special Master (Judge Lisa who did Cassidy remand) for a Frye Hearing on the reliability and admissibility of Drug Recognition Evaluation evidence in a DWI under influence of a drug.
When a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant Mitchell v. Wisconsin 139 S.Ct. 2525 (2019) - Defendant knowingly waived Miranda after Spanish translation State v. A.M. 237 NJ 384 (2019) (App. Div. 2018) -Police false promise of no jail and leniency required suppression of confession State v. L.H. July 22, 2019 Justice Albin
18. Police can’t detail occupants on noise complaint State v Chisum 236 NJ 530 (2019) 19. Guilty finding vacated based on state failure to provide evidence State v. Brown 236 NJ 497 (2019) 20. Under Emergency aid doctrine police could enter house State v. Fede 237 NJ 138 (2019) 21. Miranda violated here where detectives failed to advise subject of charges State v. Vincenty 237 NJ 122 (2019) 22 Updated Expungement Law changes procedures for expunging criminal records 23 Weapons search not permitted here after DV TRO State v. Hemenway Justice Albin 24 For DWI PCR on prior uncounseled DWI proceeding, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented State v. Patel 25 Update on legal weed
P.L. 2019 C. 248 was signed into law on August 23 2019 and took effect on December 1. It represents a significant overhaul of New Jersey’s DWI laws by decreasing the length of time that someone convicted of a DWI offense is prohibited from driving but increases ignition interlock device requirements for those offenses. To many, the law provides a much-needed solution to some loopholes that existed prior to the amendments. For others, it is still fraught with questions. If you represent clients who are charged with driving while intoxicated or under the influence, you can’t afford to miss this important update. Experienced Municipal Court practitioners, judges and prosecutors will review the changes in the law and how they affect your clients. They will review the penalties and procedures, and discuss some of the questions that still remain. In November 2019, the New Jersey Supreme Court issued a ruling in New Jersey v. Michael Olenowski. The ruling remanded the case to a Special Master to determine whether Drug Recognition Expert (DRE) evidence is generally accepted in the scientific community and therefore satisfies the standard to be admitted into evidence at trial under the New Jersey Rules of Evidence. A new expungement law takes effect on June 15, 2020, many more individuals will be able to expunge their criminal records. Among other provisions, the law will allow individuals to clear an entire record of arrests and convictions 10 years after their most recent conviction, payment of fine, satisfactory completion of probation, or parole or release from incarceration, whichever comes later. Join municipal court prosecutors and defense attorneys as they bring you up-to-date on the hottest topics in Municipal Court Law. This up-to-the-minute program will include the topics below, will include answers to your questions - don’t miss this important update! |
Municipal Court Prosecutor Is Not an Ordinary Advocate and May Dismiss Cases
Municipal Court Prosecutor Is Not an Ordinary Advocate and May Dismiss Cases
The duty of the prosecutor is to see that justice is done. Not just prosecute every case. The following is set forth in the New Jersey Court Rules, Appendix 2, Part VII, Guidelines for Operation of Plea Agreements in the Municipal Court of New Jersey, Gann Edition page 1999, Year 2000 Edition:
GUIDELINE 3. Prosecutor's Responsibilities. Nothing in these Guidelines should be construed to affect in any way the prosecutor's discretion in any case to move unilaterally for an amendment to the original charge or a dismissal of the charges pending against a defendant if the prosecutor determines and represents on the record the reasons in support of the motion.
(Adopted October 6, 1997, to be effective February 1, 1998.) NJ Court Rules, Year 2000 Edition Gann, p. 1909.
Moreover, Judge Pressler in the comments for Part VII, Appendix writes: Plea agreements are to be distinguished from the discretion of a prosecutor to charge or unilaterally move to dismiss, amend or otherwise dispose of a matter. It is recognized that it is not the municipal prosecutor's function merely to seek convictions in all cases. The prosecutor is not an ordinary advocate. Rather, the prosecutor has an obligation to defendants, the State and the public to see that justice is done and truth is revealed in each individual case. The goal should be to achieve individual justice in individual cases. In discharging the diverse responsibilities of that office, a prosecutor must have some latitude to exercise the prosecutorial discretion demanded of that position. It is well established, for example, that a prosecutor should not prosecute when the evidence does not support the State's charges. Further, the prosecutor should have the ability to amend the charges to conform to the proofs.
Recently in State v. Hawk, _______ NJ Super ___________, (App. Div. 2000) A-2784-98T5; the court held:
"A prosecutor holds a unique position in the legal community in that her primary duty is not to obtain convictions, "but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). Consequently, while a prosecutor must advocate a position vigorously, there are boundaries to such conduct."
A private prosecutor is not permitted, unless a detailed attorney certification is submitted and rules upon first by the Court R 7:8-7(b). State v. Storm, 278 NJ Super. 287 (App. Div. 1994), aff'd 141 NJ 245) 1995 prohibited private prosecutors unless there is no conflict and no financial interest in the outcome.
The roles of the judge, prosecutor and defense attorney are distinct. The attorneys are advocates for the respective sides, while the judge is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and detached and may not "take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion as to his or her participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). In DWI, criminal and other serious cases, court administrators sometimes refuse to adjourn cases where the State Police has failed to provide the mandatory discovery to the Prosecutor. A defense attorney who has paid for, but not received discovery, should not be forced by a court administrator to waste the attorney's time and client's money by traveling to a court to ask for an adjournment which is the fault of either the State Police or the Prosecutor. Defense attorneys should not have to go through the additional cost and work of filing motions to compel discovery.
Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987).
MUNICIPAL COURTS ARE BARRED FROM HANDLING DISCOVERY REQUESTS OR ASSISTING THE POLICE OR PROSECUTORS IN PREPARING THE STATE'S CASE.
Canon 1. A Judge Should Uphold the Integrity and Independence of the Judiciary An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. A court should not be "assisting" the Prosecutor to prosecute people or helping the State prepare it's cases. The integrity also is required of court administrators Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The court staff also cannot assist the Prosecutor. It is the appearance of impropriety for the Court to handle discovery.
Canon 3. A Judge Should Perform the Duties of Judicial Office Impartially and Diligently
Court staff also must be impartial. They cannot be impartial to help the police or prosecutor A municipal "prosecutor, like the [municipal] judge, must be impartial." State v. Storm, 141 N.J. 245, 254 (1995). Because of the requirement of impartiality, the municipal judge is prohibited from practicing criminal law. R. 1:15-1.
The roles of the judge, prosecutor and defense attorney are distinct. The attorneys are advocates for the respective sides, while the judge is to be the neutral adjudicator. State v. Avena, 281 N.J. Super. 327, 336 (App. Div. 1995). The judge must remain impartial and detached and may not "take sides". State v. Santiago, 267 N.J. Super. 432, 437 (Law Div. 1993). The trial judge possesses a broad discretion as to his or her participation in the trial, but simultaneously must also maintain an atmosphere of impartiality. State v. Ray, 43 N.J. 19, 25 (1964). See STATE OF NEW JERSEY v TROY SWINT, __ NJ Super. ___ (App. Div. ) A-5131-97T3
Preparation of the State's case is clearly a prosecutorial function Preparation of the State's case is clearly a prosecutorial function and is a responsibility that cannot be shifted to others. Any attempt by the prosecutor to place this function upon the clerk, who is an impartial judicial officer, is improper. State v. Perkins, 219 N.J. Super. 121, 125, 529 A.2d 1056 (Law Div. 1987). In State v. Polasky, 216 N.J. Super. 549 (Law Div 1986) Judge Haines discussed the municipal prosecutor's role in connection with discovery, and added: There is further reason for requiring the prosecutor to be responsible. In our court system, the prosecutor, contrary to an ordinary advocate, has a duty to see that justice is done. State v. D'Ippolito, 19 N.J. 450, 549-550 [117 A.2d 592] (1955). He is not to prosecute, for example, when the evidence does not support the State's charges. Consequently, the prosecutor has an obligation to defendants as well as the State and the public. Our discovery rules implicate that obligation, an obligation which can be discharged by no one else. [216 N.J. Super. at 555, 524 A.2d 474]
As set forth in State v Prickett; 240 NJ Super 139, 146 (App. Div 1990), it is the municipal prosecutor who selects the State's witnesses, requests postponements for the State, complies with discovery rules, requests dismissal if the State cannot make out a case, and does all else necessary to prepare and present the State's cases in the municipal court. See also Position 3.11, "The Role of the Prosecutor, Report of the Supreme Court Task Force on the Improvement of Municipal Courts (1985)".
We have the problem of a part-time municipal prosecutor responsible for preparing cases for trial who abandons a prosecutorial function to the municipal court clerk who assumes it. R. 1:9-1 indicates that the court clerk may issue a subpoena, but makes no provision for service by the court clerk nor does it give the clerk the authority to excuse any witness absent instructions from the municipal court judge. The municipal court clerk should not become involved in the preparation of the State's case. See N.J. Municipal Court Clerks' Manual, 2.3, pp. 69-70 (A.O.C. 1985) which states: "The municipal prosecutor has the responsibility for determining what witnesses he wants and of preparing his own subpoenas. However, if the municipal prosecutor lacks secretarial help, court personnel may assist in typing the subpoenas." State v Prickett 240 NJ Super at 145. However, the court should not ever act as the prosecutor's assistant. The court must be neutral. Courts are never permitted to handle discovery requests ever. That would be a violation of a defendant's right to an impartial court. Because the State is the municipal prosecutor's client, a failure to discharge the obligations of his office is a violation of a prosecutor's professional responsibility to represent the client diligently. When a prosecutor has available relevant evidence bearing on a prosecution, and the prosecutor's failure to present that evidence in the course of trial results in acquittal, that prosecutor has not diligently discharged his or her duty to prepare and present the State's case. Furthermore, when the failure to prepare for trial and present relevant evidence prejudices the State's case, the prosecutor's deviation from that duty may be so severe as to constitute gross negligence. Matter of Segal 130 NJ 468 (1992)
Monday, November 2, 2020
Municipal Court Appeals
Municipal Court Appeals |
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. |