Wills and Estate Administration-Articles from www.njlaws.com

Monday, October 20, 2008

RULE 4:86. ACTION FOR GUARDIANSHIP OF A MENTALLY INCAPACITATED PERSON, ALZHEIMER OR FOR THE APPOINTMENT OF A CONSERVATOR

4:86-1. Complaint

Every action for the determination of mental incapacity of a person and for the appointment of a guardian of that person or of the person's estate or both, other than an action with respect to a veteran under N.J.S.A. 3B:13-1 et seq., shall be brought pursuant to R. 4:86-1 through R. 4:86-8. The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged mentally incapacitated person and of the alleged mentally incapacitated person's spouse, if any; the plaintiff's relationship to the alleged mentally incapacitated person; the plaintiff's interest in the action; the names, addresses and ages of the alleged mentally incapacitated person's children, if any, and the names and addresses of the alleged mentally incapacitated person's parents and nearest of kin; the name and address of the person or institution having the care and custody of the alleged mentally incapacitated person; and if the alleged mentally incapacitated person has lived in an institution, the period or periods of time the alleged mentally incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined. The complaint also shall state the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged mentally incapacitated person, any person named as health care representative in any health care directive executed by the alleged mentally incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged mentally incapacitated person. Note: Source-R.R. 4:102-1. Amended July 22, 1983 to be effective September 12, 1983; former R. 4:83-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; R. 4:86 caption amended, and text of R. 4:86-1 amended July 12, 2002 to be effective September 3, 2002. 4:86-2. Accompanying Affidavits

The allegations of the complaint shall be verified as prescribed by R. 1:4-7 and shall have annexed thereto: (a) An affidavit stating the nature, location and fair market value (1) of all real estate in which the alleged mentally incapacitated person has or may have a present or future interest, stating the interest, describing the real estate fully or by metes and bounds, and stating the assessed valuation thereof; and (2) of all the personal estate which he or she is, will or may in all probability become entitled to, including the nature and total or annual amount of any compensation, pension, insurance, or income which may be payable to the alleged mentally incapacitated person. If the plaintiff cannot secure such information, the complaint shall so state and give the reasons therefor, and the affidavit submitted shall in that case contain as much information as can be secured in the exercise of reasonable diligence; (b) Affidavits of two reputable physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t. If an alleged mentally incapacitated person has been committed to a public institution and is confined therein, one of the affidavits shall be that of the chief executive officer, the medical director, or the chief of service providing that person is also the physician with overall responsibility for the professional program of care and treatment in the administrative unit of the institution. However, where an alleged mentally incapacitated person is domiciled within this State but resident elsewhere, the affidavits may be those of physicians who are residents of the state or jurisdiction of the alleged mentally incapacitated person's residence. Each affiant shall have made a personal examination of the alleged mentally incapacitated person not more than 30 days prior to the filing of the complaint, but said time period may be relaxed by the court on an ex parte showing of good cause. To support the complaint, each affiant shall state: (1) the date and place of the examination; (2) whether the physician is a treating or examining physician; (3) whether the physician is disqualified under R. 4:86-3; (4) the diagnosis and prognosis and factual basis therefor; (5) for purposes of ensuring that the alleged mentally incapacitated person is the same individual who was examined, a physical description of the person examined, including but not limited to sex, age and weight; and (6) the affiant's opinion that the alleged mentally incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged mentally incapacitated person upon which this opinion is based, including a history of the alleged mentally incapacitated person's condition. The affidavit should also include an opinion whether the alleged mentally incapacitated person is capable of attending the hearing and if not, the reasons for the individual's inability. (c) In lieu of the affidavits provided for in paragraph (b), an affidavit of one reputable physician having the qualifications as required by paragraph (b), stating that he or she has endeavored to make a personal examination of the alleged mentally incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged mentally incapacitated person or those in charge of him or her have refused or are unwilling to have the affiant make such an examination. The time period herein prescribed may be relaxed by the court on an ex parte showing of good cause. Note: Source-R.R. 4:102-2; former R. 4:83-2 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a), (b), and (c) amended July 12, 2002 to be effective September 3, 2002. 4:86-3. Disqualification of Physician

No affidavit shall be submitted by a physician who is related, either through blood or marriage, to the alleged mentally incapacitated person or to a proprietor, director or chief executive officer of any institution (except state, county or federal institutions) for the care and treatment of the mentally ill in which the alleged mentally incapacitated person is living, or in which it is proposed to place him or her, or who is professionally employed by the management thereof as a resident physician, or who is financially interested therein. Note: Source-R.R. 4:102-3; former R. 4:83-3 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; amended July 12, 2002 to be effective September 3, 2002. 4:86-4. Order for Hearing (a) Contents of Order. If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a date for hearing and requiring that at least 20 days' notice thereof be given to the alleged mentally incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged mentally incapacitated person, any person named as health care representative in any health care directive executed by the alleged mentally incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged mentally incapacitated person, the alleged mentally incapacitated person's spouse, children 18 years of age or over, parents, the person having custody of the alleged mentally incapacitated person, the attorney appointed pursuant to R. 4:86-4(b), and such other persons as the court directs. Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged mentally incapacitated person personally and upon each of the other persons in such manner as the court directs. The court, in the order, may, for good cause, allow shorter notice or dispense with notice, but in such case the order shall recite the ground therefor, and proof shall be submitted at the hearing that the ground for such dispensation continues to exist. A separate notice shall, in addition, be personally served on the alleged mentally incapacitated person stating that if he or she desires to oppose the action he or she may appear either in person or by attorney and may demand a trial by jury. (b) Appointment and Duties of Counsel. The order shall include the appointment by the court of counsel for the alleged mentally incapacitated person. Counsel shall 1) personally interview the alleged mentally incapacitated person; 2) make inquiry of persons having knowledge of the alleged mentally incapacitated person's circumstances, his or her physical and mental state and his or her property; 3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged mentally incapacitated person or to discover any interests the alleged mentally incapacitated person may have as beneficiary of a will or trust. At least three days prior to the hearing date counsel shall file a report with the court and serve a copy thereof on plaintiff's attorney and other parties who have formally appeared in the matter. The report shall contain the information developed by counsel's inquiry; shall make recommendations concerning the court's determination on the issue of mental incapacity; may make recommendations concerning the suitability of less restrictive alternatives such as a conservatorship or a delineation of those areas of decision-making that the alleged mentally incapacitated person may be capable of exercising; and whether a case plan for the mentally incapacitated person should thereafter be submitted to the court. The report shall further state whether the alleged mentally incapacitated person has expressed dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court. The report shall also make recommendations concerning whether good cause exists for the court to order that any power of attorney, health care directive, or revocable trust created by the alleged mentally incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. If the alleged mentally incapacitated person obtains other counsel, such counsel shall notify the court and appointed counsel at least five days prior to the hearing date. (c) Examination. If the affidavit supporting the complaint is made pursuant to R. 4:86-2(c), the court may, on motion and upon notice to all persons entitled to notice of the hearing under paragraph (a), order the alleged mentally incapacitated person to submit to an examination. The motion shall set forth the names and addresses of the physicians who will conduct the examination, and the order shall specify the time, place and conditions of the examination. Upon request, the report thereof shall be furnished to either the examined party or his or her attorney. (d) Guardian Ad Litem. At any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged mentally incapacitated person and to present that evaluation to the court. (e) Compensation. The compensation of the appointed counsel and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged mentally incapacitated person or in such other manner as the court shall direct. Note: Source-R.R. 4:102-4(a)(b). Paragraph (b) amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; caption of former R. 4:83-4 amended, caption and text of paragraph (a) amended and in part redesignated as paragraph (b) and former paragraph (b) redesignated as paragraph (c) and amended, and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended and paragraphs (d) and (e) added June 28, 1996 to be effective September 1, 1996; paragraphs (a), (b), (c), (d), and (e) amended July 12, 2002 to be effective September 3, 2002. 4:86-5. Proof of Service; Appearance of Mentally Incapacitated Person at Hearing; Answer

Prior to the hearing, the plaintiff shall file proof of service of the notice, order for hearing, complaint and affidavits and proof by affidavit that the alleged mentally incapacitated person has been afforded the opportunity to appear personally or by attorney, and that he or she has been given or offered assistance to communicate with friends, relatives, or attorneys. The plaintiff or appointed counsel may produce the alleged mentally incapacitated person at the hearing or the court may direct the plaintiff to do so, unless the court finds that it would be prejudicial to the health of the alleged mentally incapacitated person or unsafe for the alleged mentally incapacitated person or others to do so. If the alleged mentally incapacitated person or any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than five days before the hearing, serve and file an answer to the complaint. Note: Source-R.R. 4:102-5; caption and text of former R. 4:83-5 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-6. Hearing; Judgment

(a) Trial. Unless a trial by jury is demanded by or on behalf of the alleged mentally incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of mental incapacity. If there is no jury, the court, with the consent of counsel for the alleged mentally incapacitated person, may take the testimony of a physician by telephone or may dispense with the physician's oral testimony and rely on the affidavits submitted pursuant to R. 4:86-2(b). Telephone testimony shall be recorded verbatim. (b) Motion for New Trial. A motion for a new trial shall be served not later than 30 days after the entry of the judgment. (c) Appointment of Guardian. If a guardian of the person or of the estate or of both the person and the estate is to be appointed, the court shall appoint and letters shall be granted to the mentally incapacitated person's spouse, if the spouse was living with the mentally incapacitated person as husband or wife at the time the mental incapacity arose, or to the mentally incapacitated person's next of kin; or if none of them will accept the appointment or if the court is satisfied that no appointment from among them will be in the best interests of the mentally incapacitated person, then the court shall appoint and letters shall be granted to such other person who will accept appointment as the court determines is in the best interests of the mentally incapacitated person. Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1. The judgment appointing the guardian shall fix the amount of the bond, unless dispensed with by the court. The order of appointment shall require the guardian of the estate to file with the court within 90 days of appointment an inventory specifying all property and income of the mentally incapacitated person's estate, unless the court dispenses with this requirement. Within this time period, the guardian of the estate shall also serve copies of the inventory on all next of kin and such other interested parties as the court may direct. The order shall also require the guardian to keep the Surrogate continuously advised of the whereabouts and telephone number of the guardian and of the mentally incapacitated person and to advise the Surrogate within 30 days of the mentally incapacitated person's death or of any major change in his or her status or health. Note: Source-R.R. 4:102-6(a)(b)(c), 4:103-3 (second sentence). Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended November 5, 1986 to be effective January 1, 1987; paragraphs (a) and (c) of former R. 4:83-6 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (c) amended July 12, 2002 to be effective September 3, 2002. 4:86-7. Regaining Mental Capacity

Upon the commencement of a separate action or upon the filing of a motion in the original cause by the mentally incapacitated person or an interested person on his or her behalf, supported by affidavit and setting forth facts evidencing that the previously mentally incapacitated person no longer is mentally incapacitated, the court shall, on notice to the persons who would be set forth in a complaint filed pursuant to R. 4:86-1, set a date for hearing, take oral testimony in open court with or without a jury, and may render judgment that the person no longer is mentally incapacitated, that his or her guardian be discharged subject to the duty to account, and that his or her person and estate be restored to his or her control. Note: Source-R.R. 4:102-7; former R. 4:83-7 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-8. Appointment of Guardian for Nonresident Mentally Incapacitated Person

An action for the appointment of a guardian for a nonresident who has been or shall be found to be a mentally incapacitated person under the laws of the state or jurisdiction in which the mentally incapacitated person resides shall be brought in the Superior Court pursuant to R. 4:67. The plaintiff shall exhibit and file with the court an exemplified copy of the proceedings or other evidence establishing the finding. If the plaintiff is the duly appointed guardian, trustee or committee of the mentally incapacitated person in the state or jurisdiction in which the finding was made, and applies to be appointed guardian in this State, the court may forthwith appoint that person without issuing an order to show cause. Note: Source-R.R. 4:102-8. Amended July 26, 1984 to be effective September 10, 1984; former R. 4:83-8 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-9. Guardians for Mentally Incapacitated Persons Under Uniform Veterans Guardianship Law

(a) Complaint for Appointment. An action for the appointment of a guardian under N.J.S.A. 3B:13-1 et seq. for a ward alleged to be a mentally incapacitated person shall be brought in the Superior Court by any person entitled to priority of appointment. If there is no person so entitled or if the person so entitled fails or refuses to commence the action within 30 days after the mailing of notice by a federal agency to the last known address of such person entitled to priority of appointment, indicating the necessity for the appointment, the action may be brought by any person residing in this State, acting on the ward's behalf. (b) Complaint. The complaint shall state (1) the name, age and place of residence of the ward; (2) the name and place of residence of the nearest relative, if known; (3) the name and address of the person or institution, if any, having custody of the ward; (4) that such ward is entitled to receive money payable by or through a federal agency; (5) the amount of money due and the amount of probable future payments; and (6) that the ward has been rated a mentally incapacitated person on examination by a federal agency in accordance with the laws regulating the same. (c) Proof of Necessity for Guardian of Mentally Incapacitated Person. A certificate by the chief officer, or his or her representative, stating the fact that the ward has been rated a mentally incapacitated person by a federal agency on examination in accordance with the laws and regulations governing such agency and that appointment is a condition precedent to the payment of money due the ward by such agency shall be prima facie evidence of the necessity for making an appointment under this rule. (d) Determination of Mental Incapacity. Mental incapacity may be determined on the certificates, without other evidence, of two medical officers of the military service or of a federal agency, certifying that by reason of mental incapacity the ward is incapable of managing his or her property, or certifying to such other facts as shall satisfy the court as to such mental incapacity. (e) Appointment of Guardian; Bond. Upon proof of notice duly given and a determination of mental incapacity, the court may appoint a proper person to be the guardian and fix the amount of the bond. The bond shall be in an amount not less than that which will be due or become payable to the ward in the ensuing year. The court may from time to time require additional security. Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1. (f) Termination of Guardianship When Ward Regains Mental Capacity. If the court has appointed a guardian for the estate of a ward, it may subsequently, on due notice, declare the ward to have regained mental capacity on proof of a finding and determination to that effect by the medical authorities of the military service or federal agency or based on such other facts as shall satisfy the court as to the mental capacity of the ward. The court may thereupon discharge the guardian without further proceedings subject to the settlement of his or her account. (g) Complaint in Action to Have Guardian Receive Additional Personalty. The complaint in an action to authorize the guardian, pursuant to law, to receive personal property from any source other than the United States Government shall set forth the amount of such property and the name and address of the person or institution having actual custody of the ward. (h) Definitions. Definitions contained in N.J.S.A. 3B:13-2 shall apply to the terms of this rule. Note: Source-R.R. 4:102-9(a) (b) (c) (d) (e) (f) (g) (h), 4:103-3 (second sentence). Paragraph (a) amended July 22, 1983 to be effective September 12, 1983; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) through (f) and (h) of former R. 4:83-9 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption amended, paragraphs (a) and (b) amended, paragraphs (c) and (d) captions and text amended, paragraph (e) amended, and paragraph (f) caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-10. Appointment of Guardian for Persons Receiving Services From the Division of Developmental Disabilities

An action pursuant to N.J.S.A. 30:4-165.7 et seq. for the appointment of a guardian for a person over the age of 18 who is receiving services from the Division of Developmental Disabilities shall be brought pursuant to these rules insofar as applicable, except that: (a) The complaint may be brought by the Commissioner of Human Services or a parent, spouse, relative or other party interested in the welfare of such person. (b) In lieu of the affidavits prescribed by R. 4:86-2 the verified complaint shall have annexed thereto two affidavits. One affidavit shall be submitted by the chief executive officer, medical director, or other officer having administrative control over a Division of Developmental Disabilities program servicing the alleged mentally incapacitated person and the other shall be submitted by a physician licensed to practice in New Jersey or a psychologist licensed pursuant to N.J.S.A. 45:14B-1 et seq. The affidavit shall set forth with particularity the alleged mentally incapacitated person's significant chronic functional impairment, as that item is defined in N.J.S.A. 30:4-165.8, and the facts supporting the affiant's belief that as a result thereof, the person lacks the cognitive capacity either to make decisions or to communicate decisions to others. (c) If the petition seeks guardianship of the person only, the Office of the Public Defender, if available, shall be appointed as attorney for the alleged mentally incapacitated person, as required by R. 4:86-4. If the Office of the Public Defender is unavailable or if the petition seeks guardianship of the person and the estate, the court shall appoint an attorney other than the Public Advocate to represent the alleged mentally incapacitated person. The attorney for the alleged mentally incapacitated person may where appropriate retain an independent expert to render an opinion respecting the mental incapacity of the alleged mentally incapacitated person. (d) The hearing shall be held pursuant to R. 4:86-6 except that a guardian may be summarily appointed if the attorney for the alleged mentally incapacitated person, by affidavit, does not dispute either the need for the guardianship or the fitness of the proposed guardian and if a plenary hearing is not requested either by the alleged mentally incapacitated person or on his or her behalf. Note: Adopted July 7, 1971 to be effective September 13, 1971; amended July 24, 1978 to be effective September 11, 1978. Former rule deleted and new rule adopted November 5, 1986 to be effective January 1, 1987; caption amended and paragraphs (b), (c) and (d) of former R. 4:83-10 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c) amended June 28, 1996 to be effective September 1, 1996; paragraphs (b), (c), and (d) amended July 12, 2002 to be effective September 3, 2002. 4:86-11. Appointment of Conservator

(a) Commencement of Action; Complaint. An action pursuant to N.J.S.A. 3B: 13A-1 et seq. for the appointment of a conservator shall be brought by a conservatee or other person on his or her behalf on notice, as provided by N.J.S.A. 3B: 13A-5 and 6. The complaint shall be filed in the Superior Court and shall state (1) the conservatee's age and residence, (2) the names and addresses of the conservatee's heirs and all other persons entitled to notice pursuant to N.J.S.A. 3B: 13A-6, and (3) the nature, location and fair market value of all property, real and personal, in accordance with R. 4:86-2(a). (b) Hearing. The court, without a jury, shall take testimony in open court to determine whether the conservatee, by reason of advanced age, illness or physical infirmity, is unable to care for or manage his or her property or has become unable to provide for himself or herself or others dependent upon him or her for support. The court may appoint counsel for the conservatee if it concludes that counsel is necessary to protect his or her interests. If the conservatee is unable to attend the hearing by reason of physical or other disability, the court shall appoint a guardian ad litem to conduct an investigation to determine whether the conservatee objects to the conservatorship. If counsel for the conservatee has, however, been appointed, such counsel shall conduct the investigation and no separate guardian ad litem shall be appointed. In no case shall a conservator be appointed if the court finds that the conservatee objects thereto. (c) Acceptance of Appointment. An acceptance of appointment as conservator may be taken before any person authorized by the laws of this State to administer an oath. (d) Settlement of Conservator's Account. Where the court, for good cause shown, orders a full accounting by the conservator, the account shall be settled in the Superior Court in accordance with R. 4:87, insofar as applicable. Note: Adopted July 26, 1984 to be effective September 10, 1984; paragraphs (a), (b) and (c) of former R. 4:83-11 amended and rule redesignated June 29, 1990 to be effective September 4, 1990. 4:86-12. Special Medical Guardian

(a) Standards. On the application of a hospital, nursing home, treating physician, relative or other appropriate person under the circumstances, the court may appoint a special guardian of the person of a patient to act for the patient respecting medical treatment consistent with the court's order, if it finds that: (1) the patient is mentally incapacitated, unconscious, underage or otherwise unable to consent to medical treatment; (2) no general or natural guardian is immediately available who will consent to the rendering of medical treatment; (3) the prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patient's life or health; and (4) the patient has not designated a health care representative or executed a health care instruction directive pursuant to the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78, determining the treatment question in issue. (b) Venue. The application shall be made to the Superior Court judge assigned to general equity in the vicinage in which the patient is physically located when the application is made and, in the event of that judge's unavailability, to the Assignment Judge of the vicinage or the judge designated as the emergent judge, or if neither is available, any judge in the vicinage. (c) Procedure. The procedure on the application shall conform as nearly as practicable to the requirements of R. 4:86-1 to R. 4:86-6, but the judge may, if the circumstances require, accept an oral complaint and oral testimony either by telephone, in court, or at any other suitable location. If the circumstances do not permit the making of a verbatim record, the judge shall make detailed notes of the allegations of the complaint and the supporting testimony. Whenever possible an attorney shall be appointed to represent the patient. (d) Order. The order granting the application, if orally rendered, shall be reduced to writing as promptly as possible and shall recite the findings on which it is based. Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraphs (a), (b) and (c) of former R. 4:83-12 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (a) amended July 14, 1992 to be effective September 1, 1992; paragraph (a)(1) amended July 12, 2002 to be effective September 3, 2002.

RULE 4:86. ACTION FOR GUARDIANSHIP OF A MENTALLY INCAPACITATED PERSON, ALZHEIMER OR FOR THE APPOINTMENT OF A CONSERVATOR

Sunday, October 5, 2008

Free Office Space for Attorney- Edison, NJ

Free Office Space for Attorney- Edison, NJ
Law Office also has space sharing opportunity for new lawyer to get experience and go to court.
Attorney will be provided with their own office to start their practice, rent free. In return they will handle municipal court appearances, Will signings and other legal work and criminal law website updates in lieu of rent for maximum 5 hours per week.
Go to court and get trial experience. Excellent opportunity to jump start your career. You will get to represent people in Municipal Courts in Middlesex, Union and Monmouth County and meet the top Prosecutors and Judges. Must be admitted in NJ and have a car.
Learn to interview potential Municipal Court/Criminal clients. Also learn to draft Wills and work on Litigation files. Attorney may also help provide legal assistance to members of prepaid legal plans and public defender clients. Follow up contact calls with clients, courts, prosecutors and bar associations.
Excellent mentoring position for the right attorney. Are you hardworking and aggressive? Visit our website: www.njlaws.com to learn about our office.

The following is included with office use:
1. Desk space on our 2nd floor
2. Use of 2nd floor conference table for meetings or depositions by appointment
3. Use of our audio tape and video library.
4. Use of the front room reception area
5. Ability to put a file cabinet in basement to store your old file
6. Lighting/ Utilities
7. Bathroom Supplies
8. Landscaping / Snow Removal
9. Cleaning of Common Area
10. Hot water, municipal water/sewer charge paid
Call KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030

WILLS, PROBATE AND ELDER LAW- Adult and Community Education

WILLS, PROBATE AND ELDER LAW- Adult and Community Education
WHEN: Tuesday October 21, 2008 7 - 9 P.M.

East Brunswick Adult & Community Education Program
East Brunswick HIGH SCHOOL, Cranbury Rd
Course # FBB ...............................................................Fee: $29

Instructor: Kenneth Vercammen, Esq. of Edison
(Co-Author- NJ Elder Law & Probate)
COMPLIMENTARY MATERIAL: Brochures on Wills, “Probate and Administration of an Estate”, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

You don’t have to be wealthy or near death to do some thinking about a will. Here is your opportunity to listen to an experienced attorney who will discuss how to distribute your property as you wish and avoid many rigid provisions of the state law. Topics covered by author of “Answer to questions about Probate” will include: Wills, revocable trusts, irrevocable trusts, power of attorney, living will, long term care insurance, reverse mortgage, plus the opportunity to ask questions.
Here is your opportunity to listen to an experienced attorney who will answer questions how to distribute your property and avoid many rigid provisions of state law. For more information on Elder law, visit the Website www.centraljerseyelderlaw.com. You can also subscribe to the free email Elder Law newsletter by visiting the website, or sending an email to Kenv@njlaws.com.
Tues. 7:00–8:30 pm .......................................1 session: 10/21

Call the Adult Education Office for registration information 732- 613-6989
http://www.ebnet.org/Community_Programs/downloads/Fall_2008_Web.pdf
Please make checks payable to Adult and Community Education and mail to: Director, East Brunswick Adult and Community Education, EBHS, 380 Cranbury Road, East Brunswick, NJ 08816-3095.
About the Speaker: Kenneth Vercammen is an Elder Law and Litigation Attorney in Edison, NJ. He often lectures for the American Bar Association and New Jersey State Bar Association on Elder Law, personal injury, and criminal / municipal court matters. He has published 125 articles in national and New Jersey publications on legal topics. He speaks as a volunteer on Wills and Elder law to Adult Community Schools and non profit groups including Edison, Metuchen, Woodbridge, East Brunswick, North Brunswick, South Brunswick, Piscataway, Sayreville, Old Bridge, Spotswood and Perth Amboy Seniors. He has established New Jersey’s most popular Elder law website on the Internet to provide information on Probate, Elder Law and Traffic matters located at www.centraljerseyelderlaw.com.
East Brunswick Wills rev 9/30/08Macbook

Sunday, August 17, 2008

In the Matter of the Estate of Madeleine Stockdale, Deceased (A-121-06)

In the Matter of the Estate of Madeleine Stockdale, Deceased (A-121-06)

Argued October 9, 2007 -- Decided July 22, 2008HOENS, J., writing for a unanimous Court.

In this appeal, the Court considers the circumstances in which it is appropriate to award punitive damages against a party in a Probate Part proceeding who has engaged in undue influence in the creation of a will or testamentary trust, or in securing an inter vivos transfer of property in lieu thereof.

Madeleine Stockdale, the testatrix, owned a large home on Monroe Avenue in Spring Lake. Following her husband's death and despite her considerable wealth, she lived frugally and her house eventually fell into disrepair. She talked of selling her home to someone who would restore the home to its former grandeur and agree not to subdivide it. Stockdale was distant from others and distrustful, believing that they were only interested in her for her money. She had no children and no family except for two nephews, George and Peter Lawrence, with whom she had little contact. Stockdale was reclusive, associating with only a few people whom she considered to be her "acquaintances." The Pattersons and the DiFeos were among Stockdale's acquaintances and, in general, they looked after her. Stockdale was impressed with the good work of the volunteers of the Spring Lake First Aid Squad (SLFAS). She intended to leave her entire estate to charity out of respect for the selfless acts of kindness and because it would keep her assets away from the control of the government and limit estate taxes.

In September 1997, Stockdale listed her home for sale for the price of $1.4 million. A neighbor, Ronald Sollitto, was interested in the Stockdale home. He introduced himself directly to Stockdale and shortly thereafter, he and his wife began to help Stockdale around her home and to bring her food, continuing to express how much they liked her home.

In March 1998, Stockdale executed the first of the two wills ("1998 Will") that were eventually offered for probate and that are at the center of this appeal. At that time, Stockdale was in her late 80's or early 90's, was living alone in the Monroe Avenue house, and was in declining health. The 1998 Will was prepared by William Soons, the attorney who handled Stockdale's legal affairs. The 1998 Will named Soons and Peter Kuzmick co-executors of her estate. Stockdale directed that her home be sold on her death and that the proceeds be included in her residuary estate. The 1998 Will also included a substantial number of specific bequests and named SLFAS as the residuary beneficiary.

On the same day that the 1998 Will was executed, Stockdale entered into a new listing agreement for the sale of her home at a price of $1.65 million. In March 1999, Sollitto made an offer on the home that Stockdale rejected; nonetheless, the two continued to discuss Sollitto's purchase of the home. Sollitto claims he promised that he would not subdivide the property; would restore the home to its original grandeur; and would allow Stockdale to remain in the home until she was ready to leave. Although none of these promises was reduced to writing, Stockdale was induced to sign a proposed contract to sell the property to Sollitto for $1.3 million. That contract was prepared by Thomas Foley, an attorney retained by Sollitto. The contract made no mention of the various promises Sollitto had made to Stockdale and included a variety of terms that were unfavorable to her. Stockdale retained Soons to review the contract and to represent her in the sale of her home. Soons contacted Foley in respect of his concerns about the unfavorable terms in the contact. Rather than continuing the negotiations with Soons, Foley prepared an addendum to the contract and gave it to Sollitto, who brought it directly to Stockdale for her signature. Soons was led to believe that the deal was off, even though the parties continued to move forward with the agreement.

In December 1999, Stockdale fell and broke her hip, causing a further deterioration in her already declining health. She was eventually transferred to a rehabilitation facility where Sollitto visited and continued to discuss the pending house sale. Sollitto sent Michael A. Casale, a very close personal friend, to advise Stockdale on the sale. On December 21, 1999, Casale visited Stockdale at the rehab facility but did not reveal his very close personal relationship with Sollitto. According to Casale, Stockdale told him that she wanted to sell her home to Sollitto because he would not demolish it. Casale stated that she asked about a power of attorney and declared her desire to change her 1998 Will. Casale met with Stockdale again on December 27, 1999 where, according to Casale, Stockdale agreed to accept $50,000 from Sollitto at closing, with the remainder of the purchase price to be paid through a note and purchase money mortgage at 5% interest, which was two to three points below the current market rate. Casale testified that Stockdale had crossed out the clause in the 1998 Will leaving her residual estate to the SLFAS because she no longer wanted to leave them her money. On or about December 29, 1999, Casale met with Stockdale for a third time at which time Casale claims Stockdale decided to make Sollitto her residual beneficiary and replace her existing co-executors with Casale as the sole executor of the estate. In addition, she agreed to put a provision in her new will to forgive any mortgage debt that might be owed. Casale and Sollitto spoke regularly after Casale's meetings with Stockdale.

Because of Stockdale's imminent throat surgery, Casale executed the new will and closing documents on January 3, 2000 without the assistance or presence of Sollitto's attorney. The employees of the rehab facility who witnessed the signing of the new will ("2000 Will") were unable to testify whether Stockdale had the requisite testamentary capacity, although the facility's director did testify that Stockdale likely did not have the requisite capacity based on her ingestion of pain medication and her increased signs of confusion. On that day, Stockdale also signed a deed ("2000 Deed") transferring to Sollitto title to her house.

Once discharged from the rehab facility, Sollitto eventually moved Stockdale to an apartment that he rented in her name, secluded from her acquaintances. He and his family had moved into the Stockdale's home. In early February, Sollitto wrote a check to pay for utility charges on the Monroe Avenue home using his Power of Attorney to access Stockdale's funds. The record also shows that Sollitto removed Stockdale's antique furniture and pictures from her home. At the time of her death in April 2000, the Monroe Avenue home was worth significantly more than the purchase price. Moreover, Stockdale's estate taxes under the 2000 Will were considerably more than what would have been owed under the 1998 Will.

On March 1, 2000, Casale offered the 2000 Will for probate; on April 28, 2000, Soons, unaware of the existence of the 2000 Will, offered the 1998 Will for probate. Shortly thereafter, SLFAS, the residuary beneficiary under the 1998 Will, lodged a caveat against the 2000 Will. Casale filed a complaint in the Probate Part, seeking to dismiss the caveat and admit the 2000 Will to probate. SLFAS answered the complaint and filed a third-party complaint against Sollitto and Casale, claiming that the 2000 Will was procured by undue influence and fraud, and that the inter vivos transfer of the title to Stockdale's home by deed was similarly flawed. SLFAS sought both compensatory and punitive damages, together with attorneys' fees. Stockdale's previously disinherited nephews were allowed to intervene in the matter to protect any potential interests in the estate.

Following extensive discovery and a lengthy trial, the probate judge found that Sollitto and Casale were not credible and that Stockdale's 2000 Will was unenforceable as a product of undue influence. The probate judge also found that the 2 000 Deed and the 1999 real estate contract ("1999 Contract of Sale") transferring Stockdale's property to Sollitto were invalid as a product of undue influence and "sharp dealing." The judge set aside the 2000 Deed, voided the 1999 Contract for Sale, sustained the caveat, rejected the 2000 Will, and directed that the 1998 Will be admitted to probate. Relying on this Court's decision in In re Niles, the judge awarded SLFAS attorneys' fees as a form of punitive damages, finding that undue influence is a form of intentional tort that provides the basis for awarding punitive damages. Sollitto and Casale were required to pay attorneys' fees to SLFAS in the amount of $1,174,264.87.

The Appellate Division affirmed all but the award of attorneys' fees, remanding for consideration of punitive damages, noting that the trial court was mistaken in its view that an award of attorneys' fees under Niles is or may be a substitute for punitive damages.

The Supreme Court granted certification.

HELD: Actions arising from disputed wills and related documents designed to dispose of estate assets and which rest on allegations of undue influence are most often resolved through the equitable remedies available in the Probate Part. Although a finding that a party in an estate has engaged in undue influence may also, consistent with common-law notions of making an injured party whole and deterring particularly egregious behavior, support an award of punitive damages, the circumstances in which a punitive damage award is permitted is limited. Because the Appellate Division based its analysis on the assumption that punitive damage remedy is broadly available, its judgment is affirmed with modifications.

1. In a probate matter, the burden of proving undue influence ordinarily is on the will contestant. However, when there is a confidential relationship coupled with suspicious circumstances, undue influence is presumed and the burden of proof shifts to the will proponent to overcome the presumption. If there is a conflict of interest on the part of an attorney coupled with confidential relationships between testator and the beneficiary as well as the attorney, the presumption must be rebutted by clear and convincing evidence rather than a preponderance of the evidence. An attorney-client relationship is inherently a confidential relationship and because suspicious circumstances need only be slight, the existence of that relationship often results in both the shifting of the burden and the imposition of a clear and convincing standard of proof. (Pp. 30-34)

2. In probate matters, a tort-based claim can only arise if someone has acted so as to deplete or reduce the estate of its assets. In probate proceeding, there is generally neither compensatory damage-type award nor, by extension, the underpinnings needed for imposition of a punitive award. (Pp. 33-37)

3. In Niles, the Court emphasized New Jersey's strong public policy against shifting counsel fees from one party to another. A narrow exception exists for circumstances in which the executor or trustee commits the tort of undue influence that would enable the estate to be made whole by an assessment of all reasonable counsel fees against the fiduciary that were incurred by the estate. There is also the possibility of a punitive damage award arising from the "pernicious tort of undue influence." However, the availability of that remedy is limited to those situations in which ordinary remedies for breach of fiduciary duty will not lie or will be inadequate. The remedy is limited to situations were one who is essentially a stranger to the testator gains access to her through undue influence and then carries out a scheme to place himself into a position to seize control of that testator's assets through inter vivos transfer or by bequest. Any punitive damage award arising in the Probate Part must be in compliance with the Punitive Damages Act. This remedy will be infrequent, limited to circumstances in which the actor is not entitled to take from the estate by inheritance or through commissions, and thus an accounting and a surcharge remedy will be inadequate to restore the estate to its proper balance. (Pp. 37-45)

4. Sollitto and Casale were strangers to Stockdale, thus the surcharge remedy would be insufficient. There are distinctions between this matter and Niles. Because the claim in this case was brought by a putative beneficiary rather than by the substitute executor, no counsel fee could be awarded. The record includes ample facts and circumstances that would support a compensatory award and, potentially, a punitive one as well. Only the apparent confusion about the parameters of the available remedies prevented the Probate Part and the Appellate Division from engaging in the appropriate analysis of the record. It may well be that a punitive award is appropriate. It is left to the sound discretion of the Probate Part to consider the record in light of the Court's further guidance. (Pp. 45-51)

Judgment of the Appellate Division is AFFIRMED as MODIFIED and the matter is remanded to the Chancery Division, Probate Part, for further proceedings consistent with this opinion.

Tuesday, August 5, 2008

Elder Law 2008- Expanding and Marketing an Elder Law Practice

Elder Law 2008- Expanding and Marketing an Elder Law Practice

Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York

Speakers:
Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA

Charles Sabatino, director of the ABA's Commission on Law & Aging

Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Parag Patel, Esq. Iselin, NJ

Joan Burda, Ohio

Primary Sponsors: General Practice Section
Co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section

Topics:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct

Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.

[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]

Contact American Bar Association's Experient at 800-421-0450 or at aba@experient-inc.com for registration & tickwets to events

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

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