GUARDIANSHIPS OF ADULT INCAPACITATED PERSONS - SUPREME COURT RELAXATION OF RULE 4:86 DURING COVID-19 CRISIS

GUARDIANSHIPS OF ADULT INCAPACITATED PERSONS - SUPREME COURT RELAXATION OF RULE 4:86 DURING COVID-19 CRISIS
The Supreme Court has approved temporary adjustments to the process for seeking an adjudication of incapacity of an adult and appointment of a guardian of the person and/or estate. The Court's April 8, 2020 Order is attached.
Based on current and continuing social distancing requirements, Rule 4:86 ("Action for Guardianship of an Incapacitated Person or for Appointment of a Conservator") is relaxed to permit examinations and interviews of the alleged incapacitated person by video or by phone. Since in-person court proceedings currently are suspended, the Court's order also provides that the alleged incapacitated person must be provided an opportunity to participate in the guardianship hearing by video or by phone. In addition, judges may deviate from the model form of judgment by authorizing the appointed guardian to act immediately if qualification cannot be timely completed and to postpone (but not waive) the requirement of posting a surety bond so long as any immediate authority over the guardianship estate is narrowly tailored to avoid immediate and irreparable harm to the incapacitated person or their property .
Questions should be directed to Assistant Director for Civil Practice Taironda Phoenix by email at Taironda.Phoenix@njcourts.gov or by phone at (609) 815-2900 x54900.

Dated: April 8, 2020

Acting Administrative Director of the Courts

SUPREME COURT OF NEW JERSEY
In response to the ongoing COVID-19 coronavirus pandemic, the New Jersey Judiciary is implementing all available measures to apply social distancing in court operations, consistent with the recommendations ofthe New Jersey Department of Health and the Centers for Disease Control, including by transitioning on an emergent and temporary basis to conducting most ifnot all matters via video or telephone.
Notwithstanding the need to move to an entirely remote operation, the Judiciary must continue to meet our responsibilities to the people and the State ofNew Jersey, including those vulnerable persons alleged to be incapacitated and in need ofthe appointment ofa guardian ofthe person and/or estate.
Accordingly, pursuant to N.J. Const., Art. VI, sec. 2, par. 3, it is ORDERED that effective immediately and until further order, Rule 4:86 ofthe Rules Governing the Courts ofthe State ofNew Jersey is relaxed and supplemented based on current social distancing requirements, as follows:
1. To permit affidavits in support ofguardianship applications to be submitted by physicians or psychologists who have examined the alleged incapacitated person by video or by phone (Rule 4:86- 2(b)(2));

2. To permit affidavits in support ofguardianship applications to be submitted by persons who otherwise would be disqualified because oftheir affiliation with an institution having care or custody ofthe alleged incapacitated person (Rule 4:86-3);
3. To permit service ofthe verified complaint and notice to the alleged incapacitated person to be completed by alternative means, including certified mail or reading aloud the contents ofthe complaint (Rule 4:86-4(a)(2) and (5));
4. Topermitcourt-appointedcounselandanyguardianadlitemto interview the alleged incapacitated person by video or by phone (Rule 4:86-4(b)(1) and (d));
5. Toprovidethattheallegedincapacitatedpersonmustbeaffordedthe opportunity to participate in the guardianship hearing by video or by phone (Rule 4:86-5(a) and (c));
6. Toprovidethatjudgmentsofincapacitymayauthorizetheguardianto act immediately if qualification cannot be timely completed, and that the requirement ofposting a surety bond may be postponed (but not waived) so long as any immediate authority over the guardianship estate is narrowly tailored to avoid immediate and irreparable harm to

Will preparation online without having to travel to law office and follow up consults over phone & online.

Kenneth Vercammen’s Law Office new Will preparation online without having to travel to law office and follow up consults over phone & online. 

   To assist potential clients and seniors we now offer document preparation remotely and consults. We are concerned about your health and well being.
1. For Wills, Power of Attorney, Living Wills, please email Vercammenlaw@njlaws.com. We will email the interview form.

2. Type response/ Fill in details., email completed Will Questionnaire back. For Wills Please type up & fill out completely and email to vercammenlaw@njlaws.com.  Typing name and details is required. Save as word doc or text, not pdf. This form is extremely important. Your accuracy and completeness in responding will help us best help you. All sections and information must be filled out prior to discussing with the attorney. Cannot be handwritten since we cannot cut and paste into the forms.

3. Ken V will call to discuss after typed interview form received.

4. After persons pay by credit card online or payment confirmed from PayPal, we will draft documents and email to you.
5. Ken V will call to answer further questions
6. Sign documents in front of notary and two witnesses [ spouse ok as witness]. Signing instructions provided. UPS stores continue to be open and have notaries. 

    Stay safe but still get your important documents done. We strongly recommend all adults have a Power of Attorney prepared in the event they are temporarily incapacitated or hospitalized. We do require interview forms be completed in full and emailed back so we can provide accurate advice. The doctor’s office similarly has patients fill out details prior to the consult. We also recommend signing a Living Will with COMBINED ADVANCE DIRECTIVE FOR HEALTH CARE. The Living Will contains a Power of Attorney for Health Care & Medical Decisions. In signing your Living Will, you will designate an individual you trust to act as your legally recognized health care representative to make health care decisions for you in the event you are unable to make decisions for yourself.

Handwritten Will cannot be admitted by Surrogate to Probate

Handwritten Will cannot be admitted by Surrogate to Probate 

The Hunterdon Surrogate and other surrogates advise to be effective, a Will must be written, signed by the testator and witnessed by at least two people, or the signature and material provisions are in his/her handwriting. 

Handwritten Wills are not recommended because these Wills, referred to as holographic wills, cannot be probated in the Surrogate's Court but must be presented to the Superior Court. 

Each witness must personally witness the signing of the will. Witnesses do not have to read the will or know it's contents. 

While the law permits a beneficiary to witness a will, it is recommended that a beneficiary-witness be used only when a disinterested party is not available. In this way, possible future challenges may be avoided.

NJ Statutes also allow the witnesses and testator to sign the will in the presence of a Notary Public or attorney making the will "self-proven". This relieves the witnesses from appearing in the Surrogate's Court to prove their signature at the time of probate.

More info at https://www.co.hunterdon.nj.us/depts/surrog/probate.htm

26:2H-56. Advance directive for health care; execution

26:2H-56. Advance directive for health care; execution

4. A declarant may execute an advance directive for health care at any time. The advance directive shall be signed and dated by, or at the direction of, the declarant in the presence of two subscribing adult witnesses, who shall attest that the declarant is of sound mind and free of duress and undue influence. A designated health care representative shall not act as a witness to the execution of an advance directive. Alternatively, the advance directive shall be signed and dated by, or at the direction of, the declarant and be acknowledged by the declarant before a notary public, attorney at law, or other person authorized to administer oaths. An advance directive may be supplemented by a video or audio tape recording. A female declarant may include in an advance directive executed by her, information as to what effect the advance directive shall have if she is pregnant.

NJSA 54 :34-1 Transfers taxable, includes gifts made within three years of death

NJSA 54 :34-1  Transfers taxable, includes gifts made within three years of death

.  Except as provided in section 54 :34-4 of this Title, a tax shall be and is hereby imposed at the rates set forth in section 54 :34-2 of this Title upon the transfer of property, real or personal, of the value of $500.00 or over, or of any interest therein or income therefrom, in trust or otherwise, to or for the use of any transferee, distributee or beneficiary in the following cases: 

   a.   Where real or tangible personal property situated in this State or intangible personal property wherever situated is transferred by will or by the intestate laws of this State from a resident of this State dying seized or possessed thereof. 

   b.   Where real or tangible personal property within this State of a decedent not a resident of this State at the time of his death is transferred by will or intestate law. 

   c.   Where real or tangible personal property within this State of a resident of this State or intangible personal property wherever situate of a resident of this State or real or tangible personal property within this State of a nonresident, is transferred by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death. 

   A transfer by deed, grant, bargain, sale or gift made without adequate valuable consideration and within three years prior to the death of the grantor, vendor or donor of a material part of his estate or in the nature of a final disposition or distribution thereof, shall, in the absence of proof to the contrary, be deemed to have been made in contemplation of death within the meaning of subsection c. of this section; but no such transfer made prior to such three-year period shall be deemed or held to have been made in contemplation of death. 

   d.   Where by transfer of a resident decedent of real or tangible personal property within this State or intangible property wherever situate, or by transfer of a nonresident decedent of real or tangible personal property within this State, a transferee, distributee or beneficiary comes into the possession or enjoyment therein of: 

   (1)   An estate in expectancy of any kind or character which is contingent or defeasible, transferred by an instrument taking effect on or after July 4, 1909; or 

   (2)   Property transferred pursuant to a power of appointment contained in an instrument taking effect on or after July 4, 1909.

   e.   When a decedent appoints or names one or more executors or trustees and bequeaths or devises property to him or them in lieu of commissions or allowances, the transfer of which property would otherwise be taxable, or appoints him or them his residuary legatee or legatees, and the bequest, devise or residuary legacy exceeds what would be reasonable compensation for his or their services, such excess shall be deemed a transfer liable to tax. The Superior Court having jurisdiction in the case, shall determine what is a reasonable compensation. 

   f.   The right of the surviving joint tenant or joint tenants, person or persons, to the immediate ownership or possession and enjoyment of real or personal property held in the joint names of two or more persons, or deposited in banks or other institutions or depositories in the joint names of two or more persons and payable to either or the survivor, excluding, however, the right of a spouse, as a surviving joint tenant with his or her deceased spouse, or the right of a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3), as a surviving joint tenant with that person's deceased domestic partner, to the immediate ownership or possession and enjoyment of a membership certificate or stock in a cooperative housing corporation, the ownership of which entitles such member or stockholder to occupy real estate for dwelling purposes as the principal residence of the decedent and spouse or domestic partner, as applicable, shall upon the death of one of such persons, be deemed a transfer taxable in the same manner as though such property had belonged absolutely to the deceased joint tenant or joint depositor and had been devised or bequeathed by his will to the surviving joint tenant or joint tenants, person or persons, excepting therefrom such part of the property as such survivor or survivors may prove to the satisfaction of the Director of the Division of Taxation to have originally belonged to him or them and never to have belonged to the decedent.

   In the case of a nonresident decedent, subsection f. of this section shall apply only to real or tangible personal property within this State.

   Amended 1951, c.250; 1953, c.51, s.139; 1979, c.413; 1991, c.91, s.510; 2003, c.246, s.36.

10 Deadly Mistakes in Estate Planning

10 Deadly Mistakes in Estate Planning

By Kenneth Vercammen, Esq. 

1. Using check online forms rather than a licensed attorney. You would be foolish to try to do your own electrical work. We no longer even change our own oil.

2. Witneses that are related to the Person signing Will or beneficiaries under the Will

3. Loosing the original Will or having the Will in a place the executor cant find

4. Failing to have a new Power of Attorney if your move to another state

5. Not updating documents if the executor dies or is too ill or old to handle the responsibility.

6. Leaving assets to kids or grandchildren who will get access whe they turn age 18

7. Not having new documents drafted if you get separated or divorced.

8. Listening to friends and non professionals rather than a icensed attorney

9. Waiting until you die or get hospitalized to decide it is time to have documents prepared

10. Not having a proper Will in place to make things more expensive and difficult for your family

            Where there’s No Will …

   If you do not write a Will, the State has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself!  A Will should be a statement to the things you truly care about: your spouse, your children, your parents, your friends, your Church and charities.  You can consider remembering your church, school or local non profit

 It’s time for a call to action. 

             If You Have No Will:                                        

          

         If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get your assets.

2. State law determines who gets assets, not you

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You Lose the opportunity to try to reduce Federal Estate Tax, State inheritance taxes and fees

5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.

6. If you have no spouse or close relatives the State may take your property

7. The procedure to distribute assets becomes more complicated 

8. It probably will cause fights and lawsuits within your family

9. If no partnership agreement or procedure to transfer a business and good will could be lost.

10. Children or grandchildren under 21 years old could inherit stock and waste money.

         

When loved ones are grieving and dealing with death, they shouldn’t be overwhelmed with Financial concerns.  

         Think- Who don’t you want to receive your assets? Without a Will, they could receive your assets and request custody of children.

         Who is not the best choice to raise your children, or safeguard your children's money for college?   Do you want children, or grandchildren, to get money when they turn 18? Will they invest money wisely, or go to Seaside and play wheels? 

         Legal practice assets

It is important to prepare a Will which set forth distribution of a valuable property such as the good will of your legal practice, the phone number of a private  practice and legal equipment you own.

A Will must not only be prepared within the legal requirements of the state Statutes but should also be prepared so it leaves no questions regarding your intentions.

THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH  KENNETH VERCAMMEN’S LAW OFFICE OFTEN INCLUDES IN A WILL

1ST: DEBTS AND TAXES

2ND: SPECIFIC BEQUESTS

3RD: DISPOSITION TO SPOUSE

4TH: DISPOSITION OF REMAINDER OF ESTATE

5TH: CREATION OF TRUSTS FOR SPOUSE

6TH: CREATION OF TRUST FOR CHILDREN

7TH: OTHER BENEFICIARIES UNDER 21

8TH: EXECUTORS

9TH: TRUSTEES

10TH: GUARDIANS

11TH: SURETY OR BOND

12TH: POWERS 

13TH: AFTERBORN CHILDREN

14TH: PRINCIPAL AND INCOME

15TH: NO ASSIGNMENT OF BEQUESTS

16TH: GENDER

17TH: CONSTRUCTION OF WILL

18TH: NO CONTEST CLAUSE

WHY PERIODIC REVIEW IS ESSENTIAL

         

         Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will.  Some of these are:

     

* Marriage, death, birth, divorce or separation affecting either you or  anyone named in your Will

* Significant changes in the value of your total assets or in any particular assets which you own

     

* A change in your domicile

     

* Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, trustee or guardian of infants, or of one of the witnesses to the execution of the Will

* Annual changes in tax law

* Changes in who you like

MAY I CHANGE MY CURRENT WILL?

         

         Yes.  A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. For example, when your children are young, you may think it best to have a trust for them so they do not come into absolute ownership of property until they are mature.  Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document.  Either a new Will should be legally prepared or a codicil signed to legally change  portions of the Will.

         

         A portion of your Will and Estate Planning can be deducted on your income tax return when it deals with tax planning. Thus, part of the fee is tax deductible for income tax purposes.

         Under the law in New Jersey, if a person dies without a Will and without children, their spouse will inherit all assets, even if they are separated from the spouse.  In addition, if you have children from a previous marriage, but no Will, your separated spouse will get half your estate. Therefore, you may wish to do the following:

1)  Have an Probate attorney prepare a Will to distribute your assets to the people you care the most about. If you already have a Will, prepare a new Will and have the old Will revoked. ( Your estate planning attorney will explain this to you.)

2)  Prepare a Power of Attorney to select someone to handle your finances if you become disabled.  Have your old power of attorney revoked.

3)  Prepare a Living Will prepared

4)  Change your beneficiary on assets you may own, such as stocks, bank accounts, IRA, and other financial assets. Change your beneficiary under your own life insurance, whether whole life  insurance or term insurance.

5)  Contact your company human resources person and change the beneficiary on life insurance, pension, stock options or other employee benefits. Note that your spouse must sign a written waiver permitting you to change beneficiaries.

6)   Keep your personal papers at a location where family can find them. 

7)  Have your attorney prepare a prenuptial agreement if you decide to get re-married.

8)   Make sure the trustee for any funds designated for your children is the "right" trustee.

9)   In New Jersey, if you are married and  living with your spouse, under certain instances the surviving spouse has a right to "elect against the Will" The disinherited spouse may like to elect against the Will and try to obtain one third of the estate. Your attorney can explain how you can protect yourself and your children.                    

10) If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody.

SAVE MONEY- Have your attorney prepare a self- proving Will with a No bond clause

        

        Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond.  With a well-drawn Will, you may also reduce death taxes and other expenses.  Don’t pinch pennies now to the detriment of  your beneficiaries   

        The proper preparation of a Will should involve an analysis of  the your assets, family and desires.  

        Estate Planning is the process of examining what will happen to your property when you die and arranging for its distribution in such a manner as will accomplish your objectives. 

        The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.  

        Be sure your Will takes into account the 2018 Federal Tax changes and any Inheritance Tax changes. Also, ascertain if your Will is “self-proving”, which would dispense with having to find the Will’s witnesses after death.

OTHER DOCUMENTS TO BE PREPARED BY YOUR ATTORNEY

-Power of Attorney- to allow a trusted person to  administer your assets during your lifetime, either upon disability or now

-Living Wills- to state your wishes concerning  medical care in the event of your serious illness

-Trusts (and Medicaid Trusts)

CONCLUSION

        Planning can only be done if someone is competent and/or alive. Make sure your assets can be passed directly to your loved ones. Kenneth A. Vercammen is a Middlesex County attorney who has published 125 articles in national and New Jersey publications on estate administration, probate and litigation topics.  He has been selected to lecture to trial lawyers by the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.  

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

  Kenneth Vercammen, Esq.– Probate, Estate Planning & Elder Law bio

Kenneth Vercammen is an attorney in Edison, NJ. He is Chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  He is the author of the ABA book “Wills and Estate Administration”

He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.  He is admitted to the Supreme Court of the United States.

He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on Wills, litigation, estates, probate law and trial topics. 

He is a highly regarded lecturer on litigation and probate law for the American Bar Association, NJ ICLE, NJ 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 established the NJlaws website www.njlaws.comwhich includes many articles on Estate Planning, Probate and Wills.

KENNETH VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 (Fax)    732-572-0030

www.njlaws.com 

www.njwillsprobatelaw.com

    The book Wills and Estate Administration” is available at 

http://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=224827061