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Friday, July 20, 2007

NJ Laws Newsletter E150 March 17, 2004

Happy St. Patrick's Day

In this issue:
2. 911 Call May Permit MV Stop
3. Superior Court Not Required To Grant Civil Reservation
4. Palimony Law in New Jersey


Compiled by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section

If a person has been diagnosed with Alzheimer's disease, it is important to immediately conduct Estate Planning with the assistance of an attorney.

Close to 4 million Americans are thought to have Alzheimer's disease - yet half of them remain undiagnosed.

It's all too easy to mistake many early Alzheimer's disease symptoms for natural signs of aging. Initial symptoms, like forgetfulness, tend to be so subtle that they can easily be dismissed as "just getting old." Symptoms can also vary widely among individuals.

Recognizing and treating Alzheimer's disease early is vital. Early diagnosis of Alzheimer's disease is important because that is when the most can be done to slow the progression of symptoms. Early treatment can have a significant effect on maintaining a patient's current level of ability.

Find help for yourself. Many people concerned about Alzheimer's disease discover that they need additional answers. Your doctor is your primary source of information about Alzheimer's disease.

If a person has been diagnosed with Alzheimer's disease, but is still competent, a formal Power of Attorney, Will and Living Will should be prepared immediately. Generally, many attorneys will require:
1. A note from the Doctor indicating the person is competent to sign a Power of Attorney [and Will if the Will has not yet been prepared]
2. The client to specifically advise the attorney they want to appoint the specific person to handle their financial affairs. [The attorney cannot rely on a family member saying what the client/ patient wants.]

Prior to an individual being unable to manage his or her life as a result of a mental or physical disability, legal planning should be done. If a legally prepared Power of Attorney was signed, a trusted family member, friend or professional can legally act on that person's affairs. If a Power of Attorney was not signed, an attorney may be retained to file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs.

What is a Power of Attorney?

A Power of Attorney is a written document in which a competent adult individual (the "principal") appoints another competent adult individual (the "attorney-in-fact") to act on the principal's behalf. In general, an attorney-in-fact may perform any legal function or task which the principal has a legal right to do for him/herself. Therefore, the doctor often must determine if the recently diagnosed Alzheimer patient is competent to sign a Power of Attorney.

The term "durable" in reference to a Power of Attorney means that the power remains in force for the lifetime of the principal, even if he/she becomes mentally incapacitated. A principal may cancel a Power of Attorney at any time for any reason. Powers granted on a Power of Attorney document can be very broad or very narrow in accordance with the needs of the principal.

Why is Power of Attorney so important?

Every adult has day-to-day affairs to manage, such as paying the bills. Many people are under the impression that, in the event of catastrophic illness or injury, a spouse or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist.

The lack of properly prepared and executed Power of Attorney can cause extreme difficulties when an individual is stricken with severe illness or injury rendering him/her unable to make decisions or manage financial and medical affairs. New Jersey has legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These require formal proceedings and are expensive in court. This means requirement of lawyers to prepare and file the necessary papers and doctors to provide medical certifications or testimony regarding the mental incapacity of the subject of the action. The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating.

Advance preparation of the Power of Attorney can avoid the inconvenience and expense of legal Guardianship proceedings. This needs to be done while the principal is competent, alert and aware of the consequences of his/her decision. Once a serious problem occurs, it is too late.

Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantor's bills and to handle the grantor's affairs during the inability of the grantor to do the same.

Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouse's 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.

2. 911 Call May Permit MV Stop. State v. Golotta 178 NJ A-78-2003 (December 16, 2003). The stop of the defendant’s vehicle based only on a 911 call describing a motor vehicle that was being driven erratically was valid under the U.S. Constitution and the New Jersey Constitution in light of the significant risk of death or serious injury to the public and to the vehicle’s driver. Source: 12 NJL 2455
3. Superior Court Not Required To Grant Civil Reservation . State v. Tsilimidos ___ NJ Super. ___ A-822-02T5 (App. Div. November 14, 2003). The trial judge denied defendant’s motion for a “no civil use” bar of his plea to a disorderly persons offense heard in Superior Court and the Appellate Division affirmed, holding (1) that Rule 7:6-2(a)(1), governing the municipal courts, does not apply to proceedings in the Superior Court; and (2) the defendant made no showing of good cause as required by R. 3:9-2.
4. Palimony Law in New Jersey

The New Jersey Supreme Court expanded palimony- the ability of unmarried couples to file a suit for payment of money or support from the ex-boyfriend/girlfriend. This decision is called "In the Matter of the Estate of Arthur J. Roccamonte, Sr." (A-75-01)

In the Roccamonte case, Plaintiff was born in 1925. She married in 1941 and worked in New York City's garment center. Plaintiff and her husband gave birth to a daughter. In the 1950's, plaintiff met Arthur Roccamonte, who owned a trucking business. He was also married and had two children. Roccamonte and plaintiff began an affair. They lived together intermittently until the mid-1960s when plaintiff moved to California for the purpose of ending her relationship with Roccamonte. Roccamonte promised plaintiff that if she came back to him, he would divorce his wife. He also promised that he would provide for her financially for the rest of her life. Relying on those promises, plaintiff returned and divorced her husband. In 1970 Roccamonte leased an apartment in New Jersey where he and plaintiff lived together. Plaintiff's daughter lived with them. In 1973 the building was converted to cooperative ownership and Roccamonte purchased an interest which he titled in plaintiff's name. They lived together in the apartment as husband and wife until his death in 1995. Roccamonte never divorced his wife, and continued throughout his life to support his wife and children generously.

Roccamonte was a man of considerable wealth and the lifestyle he afforded plaintiff and the financial support he provided her was consistent with his affluence. In addition to improvements to the apartment, a weekly cash allowance of $600, clothes, jewelry and vacations, Roccamonte paid the college tuition and medical expenses of plaintiff's daughter. Meanwhile, plaintiff continued to work in the garment industry until 1990, earning a take-home pay averaging about $250 weekly. During their years together, plaintiff committed herself to her relationship with Roccamonte, conducting herself in private and in public as a loyal and devoted wife.

As plaintiff grew older, she expressed her concerns about her financial future in the event she survived Roccamonte. She testified that he repeatedly assured her that he would see to it she was provided for during her life, and he repeated these promises in the presence of other witnesses, who also testified. Roccamonte, however, died intestate. On Roccamonte's death, plaintiff received the proceeds of an insurance policy on his life in the amount of $18,000 and a certificate of deposit in her name in the amount of $10,000. She also had title to the apartment, the maintenance cost of which was then approximately $950 per month, and her jewelry. Finally, she received two weekly payments of $1,000 immediately after Roccamonte's death from his son, who was managing the trucking business. Plaintiff became 77 years old and is entirely dependent on social security payments and food stamps. She is living with her disabled daughter, who is in receipt only of social security disability payments.

Seven months after Roccamonte's death, plaintiff commenced a lawsuit against the estate, seeking a lump-sum support award. The Superior Court, Probate Part, dismissed plaintiff's complaint on the basis that she failed to make a prima facie showing of a valid contract to make a testamentary disposition. The Appellate Division reversed, finding that the trial court had failed to consider plaintiff's claim that she was entitled to support on a palimony theory. The Appellate Division remanded to the Probate Part for a hearing to determine, in part, whether plaintiff had an enforceable contract claim assertable against the decedent's estate as his successor in interest, apart from any testamentary qualities decedent's representations might have had. A plenary trial was held and the trial judge rendered his oral opinion dismissing the complaint. On appeal, the majority of the Appellate Division panel concluded that a fair reading of the record in the trial court compelled the finding that Roccamonte had made an enforceable oral promise of support for life to plaintiff, and that the promise was enforceable against his estate. The dissenting judge was of the view that the trial court failed to make a finding of that promise and, even if the promise had been made, it would not be enforceable against the estate. 346 N.J. Super. 107 (App. Div. 2001).

On Appeal, the NJ Supreme Court held: A palimony contract was entered into by the decedent and plaintiff in which plaintiff was promised support for her life, and that contract is enforceable against the decedent's estate.

1. The Court decided that unmarried heterosexual adults, even those who are married to others, have the right to choose to cohabit together in a marital-like relationship, and if one of those partners is induced to do so by a promise of support, the promise will be enforced. A palimony contract may be oral, express or implied. The contract's existence and its terms are ordinarily determinable from the parties' conduct and the surrounding circumstances. Thus, a general promise of support for life, broadly expressed, made by one party to the other with some form of consideration given by the other will suffice. If such a promise of support for the promisee's lifetime is found to have been made, without further specification of its terms, and that promise is broken, the court will enforce it by awarding the promisee a one-time lump sum in an amount predicated upon the present value of the reasonable future support defendant promised to provide, to be computed by reference to the promisee's life expectancy.

2. The formation of a marital-type relationship between unmarried persons is not exclusively dependent upon one partner providing maid service. Rather, it is the undertaking of a way of life in which two people commit to each other, foregoing other liaisons and opportunities, doing for each other whatever each is capable of doing, providing companionship and fulfilling each other's needs, financial, emotional, physical, and social, as best they are able. Each couple defines its way of life and each partner's expected contribution to it in its own way. The entry into such a relationship and then conducting oneself in accordance with its unique character is consideration in full measure. Here, plaintiff provided that consideration until her obligation was discharged by Roccamonte's death.

3. Complete dependency by the promisee on the promisor is not a sine qua non of a valid palimony agreement. The issue is one of economic inequality and the relevant question is whether the promisee is self-sufficient enough to provide for herself with a reasonable degree of economic comfort appropriate in the circumstances. Here, the fact that plaintiff chose to be employed cannot result in her forfeiture of the support promise in view of her modest salary, the gross disproportion between her economic means and Roccamonte's, and the gross disproportion between her earnings and the standard of living provided by Roccamonte. Moreover, plaintiff was no longer working when Roccamonte died and was relying exclusively on him for her support.

The Court finds that the promise of support for life was made, if not expressly as it appears to have been, then by implication. Roccamonte's break from his family and his marital-like relationship with plaintiff resulted from his successful efforts to induce plaintiff's return to him from California by representing that her future would be neither prejudiced nor compromised. Roccamonte's concern for plaintiff's economic well-being was also evident in his lavish provisions for her during their twenty-five years together. It appears highly unlikely that he intended to leave her to an impoverished old age or that she accepted that risk when she reunited with him. The promise that he would see to it that she was adequately provided for during her lifetime was both the corollary for and the condition of their relationship.

Roccamonte's duty to support plaintiff for her life was not discharged by his death and must, consequently, be discharged by his estate. It is not Roccamonte's death, however, that triggered plaintiff's entitlement, but rather his failure, during his lifetime, to have made adequate provision for the plaintiff, an obligation whose fulfillment does not depend solely or exclusively on testamentary disposition. The promise is a contractual undertaking binding the estate like any other contractual commitment the decedent may have made in his lifetime.

Because palimony claims typically are unique to a family-type relationship, this matter is remanded to the Family Part for the fixing of a lump-sum payment. That amount must be based on plaintiff's life expectancy at the time of Roccamonte's death. In the event of any prospect of delay in the remand proceedings, plaintiff may seek temporary periodic support from the Estate.

Community Events:
March 27 - Edison Elks Installation

March 29 - NJ Bar Mun Court Meeting-

March 29 - Taste of Middlesex-

Thank you for reading our newsletter! God Bless America USA #1
Kenneth Vercammen, Esq.
2053 Woodbridge Ave.
Edison, NJ 08817
NEW PHONE 732-572-0500
New (Fax) 732-572-0030
website: www.njlaws.com

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