Guardianship of Disabled Adults
Kenneth Vercammens Office represents persons seeking legal Guardianship of a Parent or Adult Family Member.
Occasionally an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. If a legally prepared power of attorney was signed, a trusted family member, friend or professional can legally act on that persons affairs. If a power of attorney was not signed, your attorney must file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs.
Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantors bills and to handle the grantors affairs during the inability of the grantor to do the same.
A Power of Attorney is an appointment of another person as ones agent. A Power of Attorney creates a principal-agent relationship. The grantor of the Power of Attorney is the principal. The person to whom the Power of Attorney is given is the agent. We give the title attorney-in-fact to the agent who is given a Power of Attorney.
Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouses signature. If a valid power of attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid.
Without a power of attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.
According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be legally incompetent. p11
1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a ward. Disability Law at p11
Recently the legislation changed the designation of mental incompetent to incapacitated person in all laws, rules, regulations and documents.
2. What rights does a incompetent lose? Unless a Court orders otherwise, a ward/ incompetent does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent also loses the right to marry.
3. How does somebody become the guardian of another? Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent or are parents of an unmarried incompetent can choose who will become the guardian after the guardians die and include a clause designating their successor in their wills. Disability Laws p12 Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent plus reasons why the incompetent is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent and prepare a report to the Court.
4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent who will act to protect the incompetents best interests can be guardian. when a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.
5. What are the rights of the proposed incompetent prior to hearing? The proposed incompetent is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.
6. What happens if the incompetent regain the ability to manage his or her affairs? The incompetent came then go back to Court and ask to be made his or her own guardian again, but first must show that he or she has regained sound reason.
7. When is a guardian not needed? Just because a person has a disability, does not mean that they need a guardian. A guardian is not needed if a person can make, and understands the nature of the decisions, and communicate the decisions to others. A guardian is not required for someone who has a physical disability, but who can manage his or her affairs, and is not needed if a person merely has a problem managing money or property. Disability Law p12
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave
Edison, NJ 08817
GUARDIANSHIP INTERVIEW FORM
Please fill out completely and fax or mail back. This form is extremely important. Your accuracy and completeness in responding will help us best represent you. Please read our website article to help you understand how guardianships are handled
ALL THE PAGES AND SECTIONS OF THIS FORM MUST BE COMPLETED PRIOR TO SEEING THE ATTORNEY. WRITE YOUR SPECIFIC QUESTIONS AT THE END OF THE LAST PAGE. PLEASE HELP YOURSELF TO THE FREE INFORMATION BROCHURES IN THE RECEPTION AREA.
PLEASE PRINT CLEARLY
Your Full Name: [Person Filling out Form]
Street Address: ________________________________________
City ____________________ State ____ Zip Code _____________
Telephone Numbers: Cell: __________________________________
Day: ____________________ Night: ________________________
E-mail address: __________________________________________
Referred By: ___________________________________________
If referred by a person, is this a client or attorney? If you heard about this law office by the internet, which search engine? What search terms did you use?
Todays Date ___________________________________________
1. Name of person for whom you seek Guardianship: ________________
Guardianship Questionnaire rev 8/16/12
2. Current address and phone for incapacitated person whom Guardianship is sought:
3. Your relationship to person: _________________________________
4. Incapacitated person is of the age of ________________., DOB _______
5. The other kin of Incapacitated person are:
___________________, relationship _______________, residing at: ___________________,
___________________, relationship _______________, residing at: _________________,
___________________, relationship ______________, residing at: ____________________
6. Name, address and fax number of Doctor 1 who will sign Affidavit that person is incapacitated:
7. Name, address and fax number of Doctor 2 who will sign Affidavit that person is incapacitated:
8. Is there a Will? _____ Did you bring a photocopy? ____
B. Is there a Power of Attorney? _____ Did you bring a copy? ____
C. Do You Have a Copy of the Deed? ________
The court rules require details of assets be set forth in a Guardianship case.
SCHEDULE A REAL PROPERTY If none, write none
1. Street and Number _____________________________________
Lot: ___ Block: ____ County: ____________________
Title/Owner of Record: _______________
Tax Assessor Assessed Value: $____________________
Full Market Value of Property: $____________________
Mortgage Balance: $______________________
Any other Real Estate: $______________________
SCHEDULE B (1) BANK ACCOUNTS, STOCK, CD, OTHER ASSETS
All Other Personal Property Owned Individually or Jointly; Market Value, Indicate the Manner of Registration at Date of Death.
If none, write none for each line
Bank Accounts/ Brokerage Accounts - Name of Bank, Acct. # ___________________________________________ $_________
Stock - Name of Stock Co., Acct. # ________________ $_________
Investment Bonds., Acct. # $_________
Cars _______________________________________ $_________
Other assets over $10,000 ______________________ $_________
Liabilities More Than $2,000: If none, write none
Estimated Gross Estate: $__________________________________
Set forth several specific acts of incompetency by the alleged incapacitated person:
PLEASE USE THIS PAGE TO WRITE YOUR SPECIFIC QUESTIONS FOR THE ATTORNEY:
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
Guardianship Legal Services To Be Provided/Retainer
FEE $_______________. [$2,500]
1. Legal Services To Be Provided. You agree that the Law Firm will represent you in connection with proposed Guardianship.
1. Office interview with client, office consult fee is $150.00, which is included in the Complaint preparation fee.
2. Review Guardianship Questionnaire filled out by client.
3. Obtain information such as name, address and telephone number.
4. Obtain information regarding value of real estate, life insurance and other assets.
5. Obtain information regarding estate and beneficiaries.
6. Obtain information regarding names of family members.
7. Discuss possible individuals to serve as Guardian.
8. Discuss Court procedures, answer legal questions.
9 Office conference, attend to signing of Complaint, Answer Questions and explain provisions.
10 Obtain clients email address to send updates.
11 Attend Hearing
12. Preparation of end of case letter to client after guardianship granted
The legal work includes research, correspondence, preparation and drafting of pleadings and other legal documents, conferences in person and by telephone with you and with others, dictating and reviewing letters, negotiations, and any other related work or service to properly represent you in this matter. Please read our website article to help you understand how guardianships are handled
Documents we will prepare:
1. Opening of file and offer client information brochures
2. Draft Verified Complaint for Guardianship
3. Prepare Affidavit of Proposed Guardian in Support of Complaint for Guardianship
4. Affidavit of next of kin
5. Prepare AFFIDAVIT OF Doctor 1
6. Prepare CERTIFICATE OF Doctor 2
7. Letters to Doctors to be delivered by client
8. Prepare letter to client enclosing draft documents for client to carefully read
9. Prepare ORDER FOR HEARING
10. Contact client to request client have doctor sign affidavit
11. Attend to proposed Guardian signing complaint
12. Prepare letter to court with signed complaint and 2 doctor certificate
13. Prepare NOTICE to incapacitated person
14. Prepare and file CERTIFICATION OF SERVICE on incapacitated person
15. Prepare co to surrogate with NOTICE to incapacitated person of Complaint and Certification of Service
16. Prepare co to guardian with hearing notice
17. review attorney Guardian report
18. Prepare Guardianship Judgment
2. Costs And Experts. In addition to legal fees, you must pay the following costs and expenses; experts fees, court costs including Complaint filing fee payable to County Surrogate, certified mail notices, investigators fees, deposition costs, messenger services, and any other necessary expenses or out of pocket expenses. The Law Firm may recommend that experts be retained directly by you. You would then be solely responsible to pay the experts.The experts usually require they be paid up front.
The Court will appoint an attorney to be a temporary law Guardian. The court will require either you or the Incapacitated person to pay the fees of the temporary law Guardian. Their fees are approx $1,500.
3. Other Legal Services. You and the Law Firm may make additional agreements to provide for legal services not covered by the Agreement. Without such agreements, the Law Firm is not required to do any of the following:
(a) Provide any legal services after the judgment of the trial court;
(b) Appeal any decisions of the trial court;
(c) Enforce any judgment or order of the trial court;
(d) Represent you in any other court or Tribunal
4. Fees. Fees can be paid by VISA, Master Card, American Express, check, money order or cash. Make checks payable to Kenneth Vercammen, P.C. As with most Attorneys, Fees are paid at the initial consultation and must be paid prior to documents being drafted.
[Note- After the Guardianship Complaint is typed, there is a minimum $100.00 additional charge for complaint changes not set forth in the Questionnaire filled out by clients at the initial consult. The Deed needs to be signed within 20 days of initial consult or additional fee will be charged. We do not do Tax Planning or Medicaid Planning. The fee paid is non refundable.]