Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen is a Central Jersey trial attorney who has published 130 articles in national and New Jersey publications. He was awarded the NJ State State Bar GP Solo Practitioner of the Year. He was a speaker at the recent ABA Annual Meeting attended by 10,000 attorneys and professionals.
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
http://www.njlaws.com/

Monday, June 27, 2016

Only attorneys can provide legal advice on medicaid estate planning

Only attorneys can provide legal advice on medicaid  estate planning
OPINION 53
Non-Lawyer Medicaid Advisors (Including “Application Assistors”) and the Unauthorized Practice of Law
COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW Appointed by the Supreme Court of New Jersey

The Committee received an inquiry concerning permissible and impermissible activities of non-lawyer Medicaid advisors, including so-called “Application Assistors.Inquirer stated that non-lawyers who are retained by families or nursing homes to assist with the Medicaid application process are providing erroneous or incomplete law-related advice. It asked the Committee to issue an opinion specifying what activities such non-lawyers may engage in and what activities are the unauthorized practice of law.
Lawyers have also called the attorney ethics research assistance hotline reporting that non-lawyers and companies that are not law firms have charged “clients” large sums of money for faulty Medicaid-planning legal assistance, causing the elderly victims significant financial loss. Some of these non-lawyers and companies may be associated with nursing homes. The Committee notes that such unauthorized practice of law is not only a criminal offense, N.J.S.A. 2C:21-22, it also may violate the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq.
According to Inquirer, non-lawyer advisors advised a family member that she could receive monies as a caregiver when the family member did not qualify for that status; advised a family member to spend down an IRA when it would have been more reasonable to purchase an
annuity with those monies; advised a family member to draw down her assets when it would have been more sensible to transfer monies to a disabled child; advised a family member to transfer real estate when it would have been prudent to address the significant tax implications of that plan; and the like. It stated that these advisors also counseled people on wills and powers of attorney; on the need for guardianships and the authority to transfer assets; on the standards for Medicaid coverage; on nursing home laws; on transfers of property; on the impact of marriage and divorce; on estate administration and the elective share; and similar legal matters. It stated that such erroneous or incomplete legal advice causes the applicant, beneficiary, and family significant harm.
Medicaid is a federal benefit program that provides health insurance to eligible persons. If the beneficiary is eligible, the program pays for hospital services, doctor visits, prescriptions, nursing home care, and other services. The program is implemented through the State Department of Human Services, Division of Medical Assistance & Health Services. The State agency is required to provide assistance to persons who may be eligible for services. 42 C.F.R. Sections 435.904(e) and 435.908(a). In addition, the federal regulations require that States must allow individual(s) of the applicant or beneficiary’s choice to assist in the application process or during a renewal of eligibility.” 42 C.F.R. Section 435.908(b).
An applicant or beneficiary is also expressly permitted to “represent himself or use legal counsel, a relative, a friend, or other spokesman” in any hearing on agency action or decisions. 42 C.F.R. Section 431.206(b)(3). The applicant or beneficiary, or his or her representative, has procedural rights, including the right to establish pertinent facts and present arguments at the hearing. 42 C.F.R. Section 431.242. Finally, the regulations require the State agency to permit applicants and beneficiaries to “designate an individual or organization to act responsibly on
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their behalf in assisting with the individual’s application and renewal of eligibility and other ongoing communications with the agency.” 42 C.F.R. Section 435.923(a)(1).
The federal regulations permit States to certify staff and volunteers to act as application assistors. 42 C.F.R. Section 435.908(c). “Certified” assistance includes “providing information on insurance affordability programs and coverage options, helping individuals complete an application or renewal, working with the individual to provide required documentation, submitting applications and renewals to the agency, interacting with the agency on the status of such applications and renewals, assisting individuals with responding to any requests from the agency, and managing their case between the eligibility determination and regularly scheduled renewals.” Id. at (c)(2). Certified assistors may not receive payment or compensation for their services. Id. at (c)(4).
The Committee acknowledges that the federal program requires States to permit non- lawyers to assist applicants and beneficiaries with Medicaid applications and represent persons in hearings. While non-lawyer Medicaid advisors may provide these limited services, the Committee finds that it is the unauthorized practice of law when non-lawyers provide advice in matters that require the professional judgment of a lawyer. Hence, only a lawyer may provide legal advice on issues such as strategies for Medicaid eligibility, including provisions of wills and powers of attorney; on the need for guardianships and the authority to transfer assets; on nursing home laws; on transfers of property; on the impact of marriage and divorce; and on estate administration and the elective share.
The Committee considered and agrees with published opinions issued by Ohio, Florida, and Tennessee regarding activities of Medicaid advisors and the unauthorized practice of law. These jurisdictions similarly acknowledge that federal law permits non-lawyers to assist individuals in Medicaid applications but conclude that, in more complex cases, providing advice
3
on strategies to become eligible for Medicaid is not sanctioned and is the unauthorized practice of law.
The Ohio Board noted the broad grant of authority to non-lawyers in the federal regulations and acknowledged that the general task of consulting with the applicant, reviewing documents to determine the applicant’s resources for Medicaid purposes, preparing and filing an application for Medicaid, and attending hearings with the individual or on behalf of the individual, are all permissible. Board on the Unauthorized Practice of Law of the Supreme Court of Ohio Advisory Opinion UPL 11-01 (October 7, 2011). The Ohio Board stated:
Medicaid planning in many, if not most, instances involves estate planning according to the prevailing legal literature. Individuals in need of long-term care often use estate tools such as trusts, gifts, and asset transfers to meet Medicaid income and resource-eligibility thresholds. Such estate planning requires specialized legal training, skill, and experience because it incorporates analysis, interpretations, and the preparation of legal documents. . . . The Board concludes that Medicaid planning requiring specialized legal training, skill, and experience constitutes the practice of law. However, especially in situations where the applicant’s income and resource levels are near the Medicaid limits, there may be some Medicaid planning scenarios involving only document review and a financial calculation. As a result, the Board further concludes that the question of whether nonattorney involvement in Medicaid planning constitutes the unauthorized practice of law must be determined on a case-by-case basis.
[Ohio Board Opinion, section III (internal citations omitted).]
The Florida Opinion provides that rendering legal advice on the implementation of Florida law is the practice of law. Florida Bar Standing Committee on the Unlicensed Practice of Law FAO #2011-4 “Medicaid Planning Activities by Nonlawyers,” (October 14, 2014). “Assessing the facts relevant to a client’s situation, applying those facts to the laws governing Medicaid, developing a plan to structure or spend the client’s assets in compliance with those laws, and drafting legal documents to execute the plan, would constitute the practice of law . . . . It is the opinion of the Standing Committee that when a nonlawyer engages in these activities or
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renders legal advice regarding the implementation of Florida law to obtain Medicaid benefits the nonlawyer is engaged in the unlicensed practice of law. This includes advising an individual on which legal strategy or strategies under federal or Florida law are appropriate given the individual’s factual circumstances.” Id. at p. 17.
The Tennessee Opinion concludes that “whether conduct by a non-attorney in this specific circumstance would constitute unauthorized practice depends on whether the legal assessments or advice at issue would require the professional judgment of a lawyer and is offered for a valuable consideration.” State of Tennessee Office of the Attorney General Opinion No. 07-166, “Practice of Law; Medicaid Eligibility” (December 18, 2007), at page 3, paragraph 2. In other words, if it is a complicated question that should be considered only by a lawyer, then it is the practice of law.
The Committee agrees with these opinions. Applying the law to an individual’s specific circumstances generally is the practice of law.A Medicaid advisor or Application Assistor may provide information on insurance programs and coverage options; help individuals complete the application or renewal; help them with gathering and providing required documentation; assist in counting income and assets; submit the application to the agency; and assist with communication between the agency and the individual. But the advisor may not provide legal advice on strategies to become eligible for Medicaid benefits, including advice on spending down resources, tax implications, guardianships, sale or transfer of assets, creation of trusts or service contracts, and the like.

Friday, June 24, 2016

Explore Your Long-Term Care Options

Explore Your Long-Term Care Options

shared from Arag legal plan

The majority of us will use some sort of long-term care services as we get older. You may need assistance with activities ranging from bathing, eating and taking medication to shopping for groceries, managing money and preparing meals.
Because the cost of these services continues to rise — now averaging anywhere from $5,000 to $10,000 per month — you need to start budgeting and planning now so that you are prepared when you need these support services, whether it be at home, in the community, in assisted living facilities or in nursing homes.

Long-term care insurance

As you plan, keep in mind that there are long-term care insurance policies that can provide financial help, but that age and physical condition are factors in the cost. If you are older or less well, then you can expect the policy to have higher premiums and more stringent terms. On the other hand, if you are younger and in good health, you can expect more flexibility in the terms and premiums.
As is true with any insurance product, you'll need to look carefully at each policy offered and its options. Consider such items as:
  • What benefits are offered? For example: daily payments amount (which could be up to a preset daily amount for incurred expense reimbursement or daily pre-set disability payment amounts regardless of actual expenses) benefits for certain period, lifetime benefit amounts, comprehensive or facility care only, home modifications to support physical capacity limitations or risks, care coordinator services, payment for family/friend provision of care.
  • What conditions trigger coverage? For example: a determined impairment in activities of daily living (ADRs) or specified cognitive impairment.
  • When will benefits begin? That is, is there an elimination period — a set period of days after the requisite triggering condition exists before benefits start? How long is the elimination period?
  • Will benefits be fixed or will they adjust with inflation?
  • What exclusions from coverage or from certain policy benefits apply? For example, If you already need or are in long-term care, or if you have certain progressive and severely debilitating conditions.
  • How much will it cost?
To learn more about this option, talk to an insurance agent who specializes in these types of policies.

Government assistance

The government provides assistance for some services to those eligible for Medicare, such as nursing home rehabilitation and post-hospitalization home health care. But it doesn't address long-term chronic needs or custodial care.
The Administration for Community Living, maintained by the federal Department of Health and Human Service's Administration on Aging, prepared a chart that addresses the major categories of long-term care options and the financing alternatives available for persons needing care:
 PublicPrivate
Long-Term Care ServiceMedicareMedigap InsurancePrivate Health Insurance
OverviewLimited coverage for nursing home care following a hospital stay and home health if you require a nurse or other skilled provider.Insurance purchased to cover Medicare cost sharing following a hospital stay and home health if you require a nurse or other skilled provider.Varies, but generally only covers services for a short time following a hospital stay, surgery or while recovering from an injury.
Nursing home care
Pays in full for days 1-20 if you are in a Skilled Nursing Facility following a recent 3-day hospital stay.
If your need for skilled care continues, may pay for the difference between the total daily cost and your copayment of $137.50 per day for days 21-100. After day 100 does not pay.
May cover the $137.50 per day copayment if your nursing home stay meets all other Medicare requirements.Varies, but limited.
Assisted living facility (and similar facility options)Does not pay.Does not pay.
Does not pay.
Continuing Care retirement communityDoes not pay.Does not pay.
Does not pay.
Adult day servicesNot covered.Not covered.Not covered.
Home health and personal care
Limited to reasonable, necessary part-time or intermittent skilled nursing care and home health aide services, some therapies if a doctor orders them, and a Medicare-certified home health agency provides them.
Does not pay for on-going personal care or only help with Activities of Daily Living (also called "custodial care").
Not covered under current policies.
Some policies sold prior to 2009 offered an at-home recovery benefit that pays up to $1,600 per year for short-term at-home assistance with activities of daily living (bathing, dressing, personal hygiene, etc.) for those recovering from an illness, injury, or surgery.
Varies, but limited.
To learn more, you may want to talk to an elder law attorney who works exclusively with elder law issues such as how to qualify for Medicaid and other government benefits and what actions you may need to take to legally qualify.

Making a decision

The decision to prepare for long-term care arrangements is very personal. You'll need to:
  • Consider the resources you'll have available for future long-term care costs and the extent of assistance you'll need to make up the difference.
  • Consider if you'll have family members to assist as caregivers should you require it, or if you'll have to turn to outside sources.
  • Think about what is most important to you in terms of the site and extent of care you'll want.
Start with a preliminary analysis and plan to meet your expectations for your own situation.
Even though thinking about how your care needs may change as you get older isn't the most fun topic, it is a necessary one. Another necessary topic you may not have considered yet?

Sunday, June 19, 2016

Civil commitment affirmed IN THE MATTER OF THE CIVIL COMMITMENT OF K.A.

Civil commitment affirmed
IN THE MATTER OF THE 
CIVIL COMMITMENT OF K.A.
________________________________
May 31, 2016

Submitted May 17, 2016 – Decided 

Before Judges Espinosa and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. 0410-15.

Joseph E. Krakora, Public Defender, attorney for appellant K.A. (Purificacion Flores, Assistant Deputy Public Defender, on the briefs).
Frank A. Blandino, attorney for respondent State of New Jersey (J. Daniela Fama, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0

PER CURIAM
K.A. appeals from the March 10, 2015 order continuing his involuntary civil commitment pursuant to Rule 4:74-7. Because we find the judge's decision to continue the commitment was supported by clear and convincing evidence, we affirm.
K.A. was involuntarily committed on a temporary order to the Carrier Clinic on February 20, 2015. Prior to the Carrier admission he had been diagnosed with schizophrenia and treated at another hospital's crisis unit after trying to cut his wrists. It was noted upon his arrival that K.A. was non-compliant with his medications; he was not speaking nor caring for his personal needs.
At the March 10, 2015 review hearing, Advance Practice Nurse Jen Schipper and David Buch, M.D. provided testimony. Schipper was responsible for the daily care of K.A. She testified that he remained "disorganized with poor insight into his illness." Although he had shown improvement, she advised he still required prompting to take care of his personal needs such as getting out of bed and showering. Buch, the treating psychiatrist, advised that K.A.'s medications had been changed and were still being adjusted. The medical staff had been unable to contact K.A.'s family to discuss housing and assistance for him. Both medical professionals recommended continued commitment.
The judge entered an order for continued commitment noting the previous non-compliance with medications and the lack of a placement plan. K.A. was discharged from Carrier seventeen days later on March 27, 2015.
Involuntary commitment is governed by the provisions of N.J.S.A. 30:4-27.1 to -27.23 and Rule 4:74-7. A person is "[i]n need of involuntary commitment" when "mental illness causes the person to be dangerous to self or dangerous to others or property," and the person is unwilling to be voluntarily admitted to a facility for care.  N.J.S.A. 30:4-27.2(m). In the present case, K.A. was found to be "dangerous to self," which is defined by N.J.S.A. 30:4-27.2(h) to mean:
by reason of mental illness the person has threatened or attempted suicide or serious bodily harm, or has behaved in such a manner as to indicate that the person is unable to satisfy his need for nourishment, essential medical care or shelter, so that it is probable that substantial bodily injury, serious physical debilitation or death will result within the reasonably foreseeable future.
On appeal, K.A. challenges the orders continuing his involuntary commitment, arguing that the County, which had the burden of proof, In re Commitment of J.R., 390 N.J. Super. 523, 529-30 (App. Div. 2007), failed to demonstrate, by clear and convincing evidence that he was dangerous to himself as statutorily defined, and for that reason, his involuntary commitment was unlawful. In considering K.A.'s appeal, we "give[] deference to civil commitment decisions[,] and reverse[] only when there is clear error or mistake."  In re Commitment of M.M.384 N.J. Super. 313, 334 (App. Div. 2006). In making our decision we must consider the adequacy of the evidence supporting the determination to continue commitment to evaluate whether it is competent. Ibid.
The judge's decision to continue the involuntary commitment was supported by expert testimony. It was undisputed that K.A. needed prompting to attend to all of his personal needs: getting out of bed, showering, changing his clothes, and taking his medications. Prior to the commitment, he was non-compliant with his medications and attempted to harm himself. At the time of the hearing, medical staff had been unable to contact family members in order to make a baseline assessment of K.A. and establish a placement plan for his discharge. The psychiatrist testified that K.A. suffered from "thought blocking"; the doctor was not yet sure if it was a positive or negative symptom of psychosis. These facts were sufficient to provide clear and convincing evidence for the judge's determination to continue the involuntary commitment.
Affirmed.

Friday, June 17, 2016

3B:10-7. Ancillary administration on estate of nonresident intestate

3B:10-7. Ancillary administration on estate of nonresident intestate
Where a nonresident dies intestate seized of real property or possessed of personal property in this State, or where the evidence of his personal property shall be in the hands of any resident of this State, the surrogate's court of the county wherein any of the real or personal property or evidence thereof, is situate, or the Superior Court, shall, in an action upon satisfactory proof of intestacy, issue letters of administration upon the estate of the nonresident to the administrator of his estate or, on notice to the administrator as the court shall require, to any person who would be entitled to administration if the intestate had been a resident at his death.

Ancillary Proceedings probate in NJ

Ancillary Probate
An ancillary probate refers to a probate proceeding that may in some cases be required in addition to the primary proceeding that took place in the state and county of legal residence. Typically ancillary probate will be necessary because the decedent owns a piece of real estate that is located outside of the state of domicile. In addition to real estate, an ancillary probate could apply to tangible property that is registered and titled outside the home state, or livestock, oil, gas or mineral rights that are attached to real estate located outside of the home state.

At the time of ancillary probate it will be necessary to provide: 
  1. Exemplified Copy of the Will and probate proceedings from the state of domicile
  2. Certified copy of the death certificate
  3. Copy of the Deed of Real Estate or Proof of Personal Property located in Mercer County
The only person with the right to make application for an ancillary probate is the person who has been appointed the executor in the out of state proceedings.

Ancillary Administration
A court appointed administrator who oversees the administration and distribution of the property owned by the decedent but located in a jurisdiction other then where the decedent was domiciled. An ancillary administration could apply to real property or tangible property that is registered and titled outside the state, or livestock, oil, gas or mineral rights that are attached to real property located outside of state of domicile.

At the time of ancillary administration it will be necessary to provide: 
  1. Exemplified Copy of the administration proceedings from the home state
  2. Certified copy of the death certificate.
  3. Copy of the Deed of Real Estate or Proof of Personal Property located in Mercer County
The intestacy laws of all 50 states and the District of Columbia are different. It is possible that the heirs of an intestate estate could be different in the state of the primary administration versus the state of the ancillary administrative proceeding.
source http://nj.gov/counties/mercer/officials/surrogate/ancillary.html

RULE 4:86. Action For Guardianship Of A Mentally Incapacitated Person

RULE 4:86. Action For Guardianship Of A Mentally Incapacitated Person Or For The Appointment Of A Conservator

4:86-1. Complaint

Every action for the determination of 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., or with respect to a kinship legal guardianship under N.J.S.A. 3B:12A-1 et seq., shall be brought pursuant to Rule 4:86-1 through Rule 4:86-8 for appointment of a general, limited or pendente lite temporary guardian. The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person's spouse, if any; the plaintiff's relationship to the alleged incapacitated person; the plaintiff's interest in the action; the names, addresses and ages of the alleged incapacitated person's children, if any, and the names and addresses of the alleged 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 incapacitated person; and if the alleged incapacitated person has lived in an institution, the period or periods of time the alleged 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 incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person.
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 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 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 physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t or the affidavit of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2.  Pursuant to N.J.S.A. 3B:12-24.1(d), the affidavits may make disclosures about the alleged incapacitated person.  If an alleged 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 incapacitated person is domiciled within this State but resident elsewhere, the affidavits required by this rule may be those of persons who are residents of the state or jurisdiction of the alleged incapacitated person's residence. Each affiant shall have made a personal examination of the alleged 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 affiant has treated or merely examined the alleged incapacitated individual; (3) whether the affiant is disqualified under R. 4:86-3; (4) the diagnosis and prognosis and factual basis therefor; (5) for purposes of ensuring that the alleged 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; (6) the affiant's opinion of the extent to which the alleged 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 incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person's condition; and (7) if applicable, the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as, residential, educational, medical, legal, vocational or financial decisions. The affidavit should also include an opinion on whether the alleged 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 affiant having the qualifications as required therein, stating that he or she has endeavored to make a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged 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; paragraphs (b) and (c) amended July 28, 2004 to be effective September 1, 2004; paragraphs (a), (b) and (c) amended July 9, 2008 to be effective September 1, 2008.

4:86-3. Disqualification of Affiant

No affidavit shall be submitted by a physician or psychologist who is related, either through blood or marriage, to the alleged 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 ill in which the alleged 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 psychologist, 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; caption and text amended July 28, 2004 to be effective September 1, 2004; amended July 9, 2008 to be effective September 1, 2008.

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  incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged  incapacitated person, any person named as health care representative in any health care directive executed by the alleged  incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged  incapacitated person, the alleged  incapacitated person's spouse or statutory partner, children 18 years of age or over, parents, the person having custody of the alleged  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 incapacitated person personally and upon each of the other persons in such manner as the court directs. The order for hearing shall expressly provide that appointed counsel for the alleged incapacitated person is authorized to seek and obtain medical and psychiatric information from all health care providers.  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  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 incapacitated person. Counsel shall (1) personally interview the alleged incapacitated person; (2) make inquiry of persons having knowledge of the alleged 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 incapacitated person or to discover any interests the alleged 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 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  incapacitated person may be capable of exercising; and whether a case plan for the  incapacitated person should thereafter be submitted to the court. The report shall further state whether the alleged 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  incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. If the alleged 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  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 incapacitated person and to present that evaluation to the court.
  • (e) Compensation. The compensation of the attorney for the party seeking guardianship, 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 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; paragraph (e) amended July 27, 2006 to be effective September 1, 2006; paragraphs (a), (b), (c), (d) and (e) amended July 9, 2008 to be effective September 1, 2008.

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 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 shall produce the alleged incapacitated person at the hearing, unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity and the court finds that it would be prejudicial to the health of the alleged incapacitated person or unsafe for the alleged incapacitated person or others to do so. If the alleged 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, affidavit, or motion in response 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; caption and text amended July 9, 2008 to be effective September 1, 2008.

4:86-6. Hearing; Judgment

  • (a) Trial. Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of incapacity. If there is no jury, the court, with the consent of counsel for the alleged incapacitated person, may take the testimony of a person who has filed an affidavit pursuant to R. 4:86-2(b) by telephone or may dispense with oral testimony and rely on the affidavits submitted. 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 General or Limited 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 incapacitated person's spouse, if the spouse was living with the incapacitated person as husband or wife at the time the incapacity arose, or to the incapacitated person's next of kin, or the Office of the Public Guardian for Elderly Adults for adults within the statutory mandate of that office, 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 incapacitated person or estate, 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 incapacitated person including registered professional guardians or surrogate decision-makers chosen by the incapacitated person before incapacity by way of a durable power of attorney, health care proxy, or advanced directive.
  • (d)  Duties of Guardian.   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 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 incapacitated person, to advise the Surrogate within 30 days of the incapacitated person's death or of any major change in his or her status or health and to report on the condition of the incapacitated person and property as required by N.J.S.A. 3B:12-42.
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; paragraph (a) amended July 28, 2004 to be effective September 1, 2004; paragraph (a) amended, text of paragraph (c) redesignated as paragraphs (c) and (d) and amended, paragraph (c) caption amended, and paragraph (d) caption adopted July 9, 2008 to be effective September 1, 2008.

4:86-7. Regaining Mental Capacity

On the commencement of a separate summary action by the incapacitated person or an interested person on his or her behalf, supported by affidavit and setting forth facts evidencing that the previously incapacitated person no longer is incapacitated or has returned to partial capacity, the court shall, on notice to the persons who would be set forth in a complaint filed pursuant to Rule 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 fully or partially incapacitated, that his or her guardianship be modified or discharged subject to the duty to account, and that his or her person and estate be restored to his or her control, or render judgment that the guardianship be modified but not terminated.
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; caption and text amended July 9, 2008 to be effective September 1, 2008.

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 an incapacitated person under the laws of the state or jurisdiction in which the 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 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; caption and text amended July 9, 2008 to be effective September 1, 2008.

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 Division of Mental Health Advocacy, in 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 Division of Mental Health Advocacy, in 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 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. 4:83B10 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; paragraph (c) amended July 28, 2004 to be effective September 1, 2004; paragraph (c) amended July 9, 2008 to be effective September 1, 2008; paragraph (c) amended July 22, 2014 to be effective September 1, 2014.

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 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.
    source: http://www.judiciary.state.nj.us/rules/r4-86.ht

Tuesday, June 07, 2016

Wills and Estate Administration for the Small Firm Lawyer: Improving Practice and Increasing Income ABA webinar

Wills and Estate Administration for the Small Firm Lawyer: Improving Practice and Increasing Income ABA webinar

June 14 2016 from 1:00-2:30 PM ET.
ABA Webinar CE1604WEA

“Wills and Estate Administration for the small firm lawyer- Improving your practice and increasing income”

topics:
1. Preparation for Wills/Estate Planning Interviews
2. Interviewing Clients
3. Signing documents and Additional Estate Planning Issues
4. Probate, Estate Administration
5 Marketing Your Wills and Estate Administration Practice

1.50 CLE

Format: Webinar

Time: 1:00 PM - 2:30 PM ET

Credits: 1.50 General CLE Credit Hours

Panelist(s): Kenneth A Vercammen

Moderator(s): David M Godfrey

Sponsor(s): Commission On Disability Rights

Commission on Law and Aging
Division for Public Services
Law Practice Division
Senior Lawyers Division
Solo, Small Firm and General Practice Division

Estate planning and administration responsibilities are often a significant part of lawyer's practice, but these issues are often time-consuming and complex. Veteran attorney Kenneth Vercammen will share how to establish and strengthen a firm's wills and estate practice. This webinar will provide step-by-step guidance that firms can use to handle all aspects of an estates practice, from initial client intake to closing the file. An essential resource for practitioners, this elder law program includes numerous forms and pertinent information to assist new and transitional attorneys. In addition, tips on practice management will help seasoned attorneys.

SPECIAL OFFER
Registrants will receive a 30% discount code for the E-Book Wills and Estate Administration by Kenneth Vercammen.

June 14 2016 from 1:00-2:30 PM ET.
ABA Webinar CE1604WEA

“Wills and Estate Administration for the small firm lawyer- Improving your practice and increasing income”

topics:
1. Preparation for Wills/Estate Planning Interviews
2. Interviewing Clients
3. Signing documents and Additional Estate Planning Issues
4. Probate, Estate Administration
5 Marketing Your Wills and Estate Administration Practice

1.50 CLE

Format: Webinar

Time: 1:00 PM - 2:30 PM ET

Credits: 1.50 General CLE Credit Hours

Panelist(s): Kenneth A Vercammen

Moderator(s): David M Godfrey

Sponsor(s): Commission On Disability Rights

Commission on Law and Aging
Division for Public Services
Law Practice Division
Senior Lawyers Division
Solo, Small Firm and General Practice Division

Estate planning and administration responsibilities are often a significant part of lawyer's practice, but these issues are often time-consuming and complex. Veteran attorney Kenneth Vercammen will share how to establish and strengthen a firm's wills and estate practice. This webinar will provide step-by-step guidance that firms can use to handle all aspects of an estates practice, from initial client intake to closing the file. An essential resource for practitioners, this elder law program includes numerous forms and pertinent information to assist new and transitional attorneys. In addition, tips on practice management will help seasoned attorneys.

SPECIAL OFFER
Registrants will receive a 30% discount code for the E-Book Wills and Estate Administration by Kenneth Vercammen.

Saturday, May 14, 2016

Guide for Health Care Proxies

Guide for Health Care Proxies
If you are in a position to make medical decisions for someone else, this guide is for you. If you have been named in someone’s medical power of attorney or other advance directive, then you may be referred to as the person’s proxy, agent, attorney-in-fact, surrogate, or representative. These are all essentially the same job. Even if you have not been named, you may be called upon to participate in medical decisions for close family or friends who are in a medical crisis and cannot speak for themselves.
EXACTLY WHAT ARE YOUR DUTIES AS A PROXY OR AGENT?
Your duties depend on what the person’s advance directive says and upon state law. You have to read the advance directive and ask about state law. Your duties begin when the individual loses the ability to make health care decisions on his or her own.
In general, you will have authority to make any and all decisions a patient would make for
him or
1. 2. 3. 4. 5. 6. 7.
8.
herself, if able. This includes:
Receiving the same medical information the individual would receive. Conferring with the medical team.
Reviewing the medical chart.
Asking questions and getting explanations.

Discussing treatment options.
Requesting consultations and second opinions.
Consenting to or refusing medical tests or treatments, including life-sustaining treatment.
Authorizing a transfer to another physician or institution, including another type of facility (such as a hospital or skilled nursing home).

HOW TO MAKE MEDICAL DECISIONS
The toughest decision may concern beginning or stopping life-sustaining treatments. In each life there may come a time when the patient’s condition has deteriorated and it is clear that he or she will not get better. Family members or doctors may then question the value of life-sustaining treatments that seem to prolong the process of dying. Rather than thinking of this as depriving your loved one of necessary treatment, you may be protecting him or her from unnecessary pain and suffering. Many people say they do not want to die slowly, hooked up to machines, or fed artificially through tubes. What does your loved one think? Use the steps on the next page to help you decide.
ABA Commission on Law and Aging Tool 9 / Page 1
STEPS FOR A PROXY TO FOLLOW Deciding for a loved one (whom we will call Mary)
1. Findoutthemedicalfacts.Thisrequirestalkingtothedoctorsandgettingacomplete picture of the situation. Questions you can use:
  • ►  What is the name of Mary’s condition?
  • ►  If you don’t know exactly what’s wrong, what are the possibilities?
  • ►  Are tests needed to know more? Will the outcome of more testing make any
    difference in how you treat her, or in how she wants to be treated? (If not, why do
    the test?)
  • ►  What is the purpose of each test? Do these tests have risks associated with them?
  • ►  Is the information you need worth the risk of the test?
  • ►  What is her condition doing to her now?
  • ►  How do you explain her symptoms?
  • ►  What usually happens with this disease?
  • ►  What do you think now will be the likely course of this disease or condition?
  • ►  How severe or advanced is her case?
    2. Find out the options. Make sure the physician describes the risks and benefits of each option. You may want to ask:
  • ►  How will this option make Mary improve or feel better?
  • ►  What is the success rate statistically? What is success?
  • ►  Can this procedure be done on a trial basis and then reevaluated? What is an
    appropriate amount of time for a trial? Are you willing to stop it after an agreed-upon
    trial?
  • ►  What defines “success” for this option? (It may not be what Mary would consider a
    success.)
  • ►  What will it mean to her quality of life?
  • ►  If she is to die, how might it affect the circumstances of her death? (For example, will
    it likely require hospitalization instead of home care?)
  • ►  What are the possible side effects?
  • ►  What option do you recommend, and why?
    3. Figure out how Mary would decide if she knew all the facts and options. You have three possible approaches to making the decision:
    • ►  One - If you know preferences, follow them.
    • ►  Two - If you do not know Mary’s wishes for the specific decision at hand, but you
      have evidence of what she might want, you can try to figure out how she would decide. This is called substituted judgment, and it requires you imagining yourself in the patient’s position. Consider her values, religious beliefs, past decisions, and past statements she has made. The aim is to choose as Mary would probably choose, even if it is not what you would choose for yourself.
    • ►  Three - If you have very little or no knowledge of what Mary would want, then you and the doctors will have to make a decision based on what a reasonable person in the same situation would decide. This is called making decisions in the patient’s best interest. Evaluate the benefits and burdens of the proposed treatment. For example, will the treatment cause Mary pain or suffering? Is it likely to make Mary better?
ABA Commission on Law and Aging Tool 9 / Page 2

EIGHT THINGS A PROXY CAN DO TO OBTAIN GOOD CARE FOR THE PATIENT.
  1. Prepare in advance with the individual. Learn what is important to your loved one in making health care decisions. Do this before he or she loses the ability to decide. Talk about beliefs and values regarding living, and dying. Talk about spiritual beliefs.
  2. Make yourself and your role known to the medical staff. Make sure the advance directive is in the medical chart and medical personnel know its contents. Keep a copy yourself, handy, to show to people involved in the individual’s medical care. Keep in touch with these people.
  3. Stay informed about the person’s condition as it changes. Medical conditions change. Staff at the hospital change. Identify the person who can best keep you informed of the individual’s condition. Stay involved and be flexible. Read the medical record every day.
  4. Push to make someone responsible for overall care. Usually there are many medical personnel involved in the patient’s care, none of whom wants to take full responsibility for the entire patient. Insist that one person be given overall responsibility to manage the patient’s care and provide the necessary continuity during the entire period of care.
  5. Keep the family informed, if appropriate. You may have the legal authority to make medical decisions even if family members disagree. However most proxies are more comfortable if there is agreement among loved ones. Good communication can foster consensus. But you may also need help in resolving family disagreements. Ask for the facility’s patient representative or ombudsman, social worker, clergy or spiritual advisor. Or ask for the ethics committee or ethics consultant.
  6. Anticipate transfers. Make sure when the patient is moved from one section of the hospital to another, or to a different facility, that you know the treatments to be continued or begun after the transfer. Meet with the medical team or head nurse to ensure that they are aware of the ordered treatment.
  7. Advocate on the patient’s behalf and assert yourself with the medical team, if necessary. Some medical people may not be as comfortable as others with your involvement. You may disagree with the doctor’s recommendations. It is hard to disagree with medical professionals and institutional authorities. Be tactful and assertive. Insist that medical issues be explained to you in words you can understand. If their resistance becomes a problem, or if you feel you are not being heard, ask for help. Ask for help from the facility’s patient representative or ombudsman, social worker, clergy or spiritual advisor, ethics committee or ethics consultant. Be a squeaky wheel, if need be.
  8. Retain the help of a private care manager if you are unable to work with the medical team on your own. A care manager usually has an advance nursing or social work degree. She or he can help you understand the medical record, attend care conferences, and advise you if the care is deficient or inappropriate.
ABA Commission on Law and Aging Tool 9 / Page 3
source http://www.americanbar.org/content/dam/aba/migrated/aging/toolkit/tool9.authcheckdam.pdf