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Bergen county guardianship lawyer
WHAT IS GUARDIANSHIP?In NJ, if a person who is over the age of 18 is no longer able to make decisions regarding his or her health, welfare and finances, another adult may apply to become his or her guardian. An individual may be incapacitated due to Alzheimer's, mental illness, developmental disabilities, a traumatic head injury or some other reason. The guardian would have the legal ability to make healthcare, financial and/or other decisions on behalf of and in the best interest of the incapacitated person. A guardian is usually a relative, but can also be a friend or in some cases, the public guardian may be appointed. The guardian will provide for the ward's needs from the ward's estate. HOW IS A GUARDIANSHIP OBTAINED?A petition for guardianship is brought in the Superior Court. The party making the application for guardianship must have two physicians (or one physician and one psychologist) examine the allegedly incapacitated person. A verified complaint is then filed in the Superior Court within 30 days of the doctors' examinations. The complaint must state details about the person, their family members, the plaintiff's relationship to the person (plaintiff is the person filing the complaint), where the individual lives, the person's physical and mental condition and any estate planning or healthcare documents that the individual has and must allege that the individual is unfit and unable to govern his or her own affairs. The complaint must be accompanied by an affidavit from the plaintiff detailing the alleged incapacitated person's assets and affidavits of the two physicians (or physician and psychologist) describing the physical/mental condition of the allegedly incapacitated person and each doctor's opinion as to whether he or she is unfit and unable to govern him/herself and manage his/her affairs and the basis of the doctors' opinions. The verified complaint and supporting documents must be filed with a proposed Order for Hearing. If the Court is satisfied with the sufficiency of the complaint and affidavits, the Judge will sign the Order for Hearing, which will provide for a hearing date and the appointment of an attorney for the allegedly incapacitated person. The complaint and Order must be served upon the allegedly incapacitated person, his or her court-appointed attorney and all other interested parties and proof of service must be filed with the Court. The court-appointed attorney will conduct an investigation, including interviews with the allegedly incapacitated person, the proposed guardian and all other interested parties and will examine medical and financial records of the allegedly incapacitated person. This is done to insure that no one is attempting to take advantage of or mistreat the allegedly incapacitated person. The court-appointed attorney will prepare a report of his or her findings, which will include recommendations on the person's capacity and that individual's wishes. If there is no objection to the guardianship and/or the appointment of the proposed guardian, then the hearing may be dispensed with and a Judgment entered by the Court without the need for anyone to appear before the Judge and give testimony. In the case of objections, a trial may be conducted. If a Judgment is entered declaring the person incapacitated and appointing a guardian, the guardian must report to the Surrogate's office to obtain letters of guardianship. The guardian will have to file an annual report detailing the incapacitated person's health, welfare and finances. In some cases, the guardian will have to post a bond. This is generally done in the case of non-family member guardians and/or extensive estates. This is often not required for smaller estates where the guardian is an immediate family member. The procedure may take from 30 to 120 days. Since it can be a complicated procedure, it is generally recommended that an attorney be hired by the petitioner. This procedure is usually more expensive than doing estate planning before a person becomes incapacitated and is even more costly if the matter becomes contested. WHAT ARE THE ALTERNATIVES TO GUARDIANSHIP?The alternatives can be far less expensive and do not involve filing legal proceedings in court. A costly guardianship action can be avoided with the executing of a Power of Attorney and Advance Directive for Healthcare, but these documents must be signed by the individual while he or she is competent. WHAT IS A POWER OF ATTORNEY?A Power of Attorney, sometimes called a Durable Power of Attorney or POA, is a legal document where the principal gives his or her agent or representative the ability to make financial decisions on behalf of the principal. It can be used for any financial transactions for which it is designated, including but not limited to banking, buying and selling real estate, accessing safe deposit boxes and the like. It does not have to be recorded like a Deed, except in certain circumstances such as when used in connection with a real estate transaction. The principal will still be able to make his or her own financial decisions and transactions and retains the right to revoke the POA at any time as long as he or she remains competent. WHAT IS AN ADVANCE DIRECTIVE FOR HEALTHCARE?This legal document, also known as a Living Will, enables the principal to direct what type of medical care he or she wants to receive. In the case of an emergency where the person may not be able to convey his or her wishes, this document is very important. It allows the individual to select "heroic measures" or not and distinguish the extent and/or nature of medical intervention he or she wishes to receive. It also allows the person to select a healthcare proxy or representative to make decisions for them if they become temporarily or permanently incapacitated. Without such designation, the next-of-kin may be called upon to make some very difficult decisions under great emotional stress. This can result in the individual receiving life prolonging measures that he or she did not want and/or cause a loved one to suffer a guilty conscience even though he or she acted in the person's best interest. The preparation of a Durable Power of Attorney and an Advance Directive for Healthcare by an attorney is far less time consuming and much less costly than the commencement of guardianship proceedings and it allows the principal to make financial and healthcare decisions for him/herself while he/she is competent. WHAT IS THE DIFFERENCE BETWEEN A LIVING WILL AND A LAST WILL AND TESTAMENT?While a Living Will (or Advance Directive for Healthcare) allows a person to give directions regarding his or her healthcare, a Last Will and Testament allows a person to give directions regarding his or her estate. DO I REALLY NEED A LAST WILL AND TESTAMENT?Without a Last Will and Testament, a person's assets will pass to his or her heirs by operation of law. Unless you have a Last Will and Testament, your money and property may not pass to your heirs in the shares or percentages that you would prefer or even to the people that you would prefer. For example, the spouse may not necessarily inherit the entire estate unless a Will provides for that. A Last Will and Testament also allows a person the ability to make "special bequests" or particularize gifts, such as "my diamond engagement ring to my granddaughter" or "my collection of baseball cards to my nephew." Moreover, if a person has no living heirs, all of his or her property could default to the government unless he or she makes a Last Will and Testament and designates the beneficiary, which could be a friend, house of worship, charitable foundation or the like. A Last Will and Testament will also allow a parent to designate a guardian for minor children and a trustee to manage assets that the children may inherit. A Will also permits a person to choose who should distribute the assets of the estate. Without a Last Will and Testament, the court will appoint such person. CAN I PREPARE A LAST WILL AND TESTAMENT MYSELF?It is highly recommended that a Last Will and Testament be prepared by an attorney. There are many "do it yourself" kits available. However, there are no guarantees that these will comply with legal statutory requirements, which may vary from state to state and these documents will not be specifically tailored to your individual needs. A Will that does not comply with the law may not be honored. Your assets may then go to parties other than those whom you have designated. You should seek the advice of a professional licensed attorney before executing any legal documents in order to ensure appropriate legal protection. WHAT ARE THE REQUIREMENTS FOR A WILL TO BE VALID?In New Jersey, any person age eighteen and over who is not incapacitated may make a Will. A Last Will and Testament must be in writing and signed in the presence of two disinterested witnesses, who also sign the Will. If this is done in the presence of and signed by a notary or attorney, with the proper legal language, the Will can be "self-proving." This means that the heirs will not have to prove that the signature on the Will is that of the person making the Will. A handwritten Will, also known as a holographic Will, may be valid, but only if the heirs can prove that the signature and the handwritten provisions are in the handwriting of the person claimed to have made the Will. Due to this extra step, probating a holographic Will is generally expensive and not recommended. WHEN SHOULD I HAVE MY LAST WILL AND TESTAMENT, POWER OF ATTORNEY AND ADVANCE DIRECTIVE FOR HEALTHCARE DONE?Today! It is never too early to be prepared. Proper and timely estate planning saves money and provides peace of mind for you and your family. WHO IS NINA REMSON?Nina C. Remson, Esq. is the founding and managing member of Nina C. Remson Attorney at Law, LLC in Hackensack, New Jersey. Ms. Remson has been practicing law for nearly nineteen years and is admitted to practice in New Jersey and New York. Ms. Remson has a general practice with a concentration in estate and probate matters; juvenile, traffic court and criminal cases; and family law. She also handles other transactional and litigation matters. Nina Remson graduated with a Bachelor of Arts from Douglass College at Rutgers University in 1988 and a Juris Doctor from Rutgers Law School in 1991. Upon graduation from law school, she served as a Judicial Law Clerk for the Honorable Martin J. Kole, J.A.D., in the Civil Division in the Bergen County Superior Court from 1991-1992. Ms. Remson worked for a solo practitioner for a number of years, during which time, she was responsible for all phases of criminal litigation and handled all of the firm's estate and probate matters and family law litigation. Ms. Remson is the Secretary of Women Lawyers in Bergen and is active in many Bergen County Bar Association and New Jersey State Bar committees, including the Bergen Bar's Mental Health Law Committee. She is a member of the Guardianship Association of New Jersey, Inc. and has served as a court-appointed attorney for individuals alleged to be incapacitated and diagnosed with a range of illnesses, including Alzheimer's, schizophrenia, autism and traumatic head injuries. She is on the court-appointed attorney list in Bergen, Passaic, Hudson, Essex and Morris Counties and offers legal services to family members and others seeking to become guardians. Nina Remson is dedicated to assisting individuals and families with their legal needs throughout Northern New Jersey and the New York City area. For more information on our firm or for a free consultation, please contact Nina C. Remson Attorney at Law, LLC 25 Main Street, Suite 104, Court Plaza North Hackensack, NJ 07601 Tel: 201-489-0308 Email: nina@ninaremsonlaw.com FOR MORE INFORMATION: Please refer to the following reliable websites for more information: www.state.nj.us/humanservices/ddd/services/guardianship DISCLAIMER: This brochure is for educational purposes only. It is not legal advice and is not intended to create a lawyer-client relationship. This brochure does not take the place of a personalized legal consultation.
Nina C. Remson
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