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Kenneth Vercammen & Associates
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Guardianship Law Changes

Occasionally an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. If a legally prepared power of attorney was signed, a trusted family member, friend or professional can legally act on that persons affairs. If a power of attorney was not signed, your attorney must 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.

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 grantors bills and to handle the grantors affairs during the inability of the grantor to do the same.

A Power of Attorney is an appointment of another person as ones agent. A Power of Attorney creates a principal-agent relationship. The grantor of the Power of Attorney is the principal. The person to whom the Power of Attorney is given is the agent. We give the title "attorney-in-fact" to the agent who is given a Power of Attorney.

Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouses 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 legally incompetent." 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

Recently enacted legislation (P.L. 1997, c 379) changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents. The Supreme Court Committee on Civil Practice will be considering whether the Rules of Court should be amended in accordance with the statute. New Jersey Lawyer March 23, 1998

2. What rights does a incompetent lose? Unless a Court orders otherwise, a ward/ incompetent 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 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 or are parents of an unmarried incompetent 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 plus reasons why the incompetent 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 and prepare a report to the Court.

4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent who will act to protect the incompetents 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 prior to hearing? The proposed incompetent 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. What happens if the incompetent regain the ability to manage his or her affairs? The incompetent came then go back to Court and ask to be made his or her own guardian again, but first must show that he or she has regained "sound reason".

7. When is a guardian not needed? Just because a person has a disability, does not mean that they need a guardian. A guardian is not needed if a person can make, and understands the nature of the decisions, and communicate the decisions to others.

A guardian is not required for someone who has a physical disability, but who can manage his or her affairs, and is not needed if a person merely has a problem managing money or property. Disability Law p12

Selected guardianship statutes

3B:12-24. Issue of mental incompetency triable without jury unless jury is demanded In civil actions or proceedings for the determination of mental incompetency or for the appointment of a guardian for an alleged mental incompetent, the trial of the issue of mental incompetency may be had without a jury pursuant to Rules Governing the Courts of the State of New Jersey, unless a trial by jury is demanded by the alleged mental incompetent or someone on his behalf.

3B:12-25. Appointment of guardian other than a testamentary guardian The Superior Court may determine the mental incompetency of an alleged mental incompetent and appoint a guardian for his person, guardian for his estate or a guardian for his person and estate. Letters of guardianship shall be granted to the spouse, if the spouse is living with the incompetent as man and wife at the time the incompetency arose, or to his heirs, or if none of them will accept the letters or it is proven to the court that no appointment from among them will be to the best interest of the incompetent or his estate, then to any other proper person as will accept the same.

3B:12-26. Action against mental incompetent when guardian newly appointed; leave of court required No action shall be brought or maintained against a mental incompetent within 1 month after appointment of a guardian except by leave of the court wherein the action is to be brought or maintained.

3B:12-27. Distribution of mental incompetents property as intestate property If a mental incompetent dies intestate or without any will except one which was executed after commencement of proceedings which ultimately resulted in a judgment of incompetency, and before a judgment has been entered adjudicating a return to competency, his property shall descend and be distributed as in the case of intestacy.

3B:12-28. Return to competency; restoration of estate The Superior Court may adjudicate that the mental incompetent has returned to competency and restore to him his estate if the court is satisfied that he has recovered his sound reason and is fit to govern himself and manage his affairs, or, in the case of a mental incompetent determined to be mentally incompetent by reason of chronic alcoholism, that he has reformed and become habitually sober and has continued so for 1 year next preceding the commencement of the action, and in the case of a mental incompetent determined to be mentally incompetent by reason of chronic use of drugs that he has reformed and has not been a chronic user of drugs for 1 year next preceding the commencement of the action.

Additional information on Elder Law is available on the website KennethVercammen.com

To schedule a consultation regarding Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500 (Edison)

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 111articles in national and New Jersey publications on Elder Law and litigation topics. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.

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Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means:
YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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