Compiled by Kenneth Vercammen, Past Vice-Chair, American Bar Association Elder Law Committee, GP Section
If someone suffers a stroke, but is competent, it is recommended that a Power of Attorney be prepared by an attorney to permit a family member to help the stroke patient by paying bills and handling finances. 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 [stroke victim, not a family member] to specifically advise the attorney the specific person they want to appoint 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 persons affairs. If a Power of Attorney was not signed, we will only prepare a Power of Attorney for a "competent person". If, after a stroke, the person is not competent, 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 handle financial affairs. This is called a Guardianship.
ANNOUNCING HOME & HOSPITAL VISITS IN ELDER LAW CASES
A new service from our office is the availability of Home and Hospital visits. Timely advice and planning is important. Often people cannot travel to our office to sign Wills, Powers of Attorney, Living Wills, and other legal documents. We can help by traveling to homes, hospitals, senior centers, retirement villages, and nursing homes. For people under doctors care, we require a note from the doctor be obtained indicating that the person is competent to sign these documents, to ensure that the persons wishes are less likely to be contested in the future. The minimum fee for a hospital or home visit is $500 in Middlesex County.
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 principals 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 stroke 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 a properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. 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 the 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, and 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 granter of the power becomes ill or incapacitated, the Power of Attorney will permit the holder to pay the grantors bills and to handle the grantors 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 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 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, along with a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent/ incapacitated person, and the 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 persons 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 www.NJLaws.com
To schedule a consultation regarding Estate Planning for Stroke patients or Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500 in Edison, N.J.
Kenneth A. Vercammen is a Middlesex County trial attorney who has published 130 articles in both 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 is the past Vice Chair of the American Bar Association Elder Law Committee, General Practice Section. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association, and Middlesex County Bar Association.
ANNOUNCING HOME & HOSPITAL VISITS IN ELDER LAW CASES
A new service from our office is the availability of Home and Hospital visits. Timely advice and planning is important. Often people cannot travel to our office to sign Wills, Powers of Attorney, Living Wills, and other legal documents. We can help by traveling to homes, hospitals, senior centers, retirement villages, and nursing homes. For people under a doctors care, we require a note from the doctor be obtained indicating the person is competent to sign these documents. This ensures the persons wishes are less likely to be contested in the future. The minimum fee for a hospital or home visit is $500 in Middlesex County.