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Friday, July 20, 2007

NJ Laws Newsletter E154 May 25, 2004

In this issue:
1. Friday May 28 Belmar Night
2. Car Accident Injury Must Meet Serious Impact Test to permit suit under Lawsuit / Verbal threshold law
3. The Durable Power of Attorney
4. Blood DWI Reversed Where Chain Of Custody Not Met.

1. Friday May 28 Belmar Night- The Start of Summer
Friday May 28 Belmar Night Join Ken V and the former Belmar volleyball players for Legends Night. This is the Opening night of Belmar Bars. We start at D' Jays Ocean Ave, Belmar at approx 6pm to avoid the lines. Free food. Bar Anticipation afterwards. The next morning we get up at 7am and run the Spring Lake 5 mile charity race. Call Ken V for details

2. Personal Injury cases: Car Accident Injury Must Meet Serious Impact Test to permit suit under Lawsuit / Verbal threshold law .
James v. Torres. ___ NJ Super. ___ A-5581-OOT5 (App. Div.) The amended verbal-threshold statute, N.J.S.A. 39:6A-8 in the Automobile Insurance Cost Reduction Act, incorporates the limitations and the approach adopted in Oswin v. Shaw prior to the statute's amendment, and a plaintiff must demonstrate that the injuries she received in the accident have had a serious impact on her life in order to have her case submitted to the jury -- to the extent that Compere v. Collins holds otherwise, it is disapproved; the trial court's dismissal of plaintiff's action for injuries allegedly sustained in an auto accident is affirmed, since she failed to establish that her injuries have had a serious impact on her life. Source: 170 N.J.L.J. 541

3. The Durable Power of Attorney
Compiled by Kenneth A. Vercammen

What are these Powers 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.

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. All states have legal procedures, guardianships or conservatorships, to provide for appointment of a Guardian. These normally require formal proceedings and are expensive in court. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical 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 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.
The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following:

1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to any real estate or lands in which I have an interest.

2. ENDORSEMENT AND PAYMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances. To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.

3. MEDICAL RECORDS ACCESS: To be able to access my medical and hospital records under Federal Law HIPAA.

4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.

5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.

6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions as set forth in section 2 of P.L. 1991, c. 95 (c. 46:2B-11).

7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.

8. GIFT GIVING POWERS: To make gifts in amounts which my agent in his sole, absolute and unfettered discretion shall deem appropriate in any given year on my behalf.
You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.

A Power of Attorney is an appointment of another person as one's 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.

As attorney-in-fact, you have all of the powers which are set out in the attached Power of Attorney. If you ever have any questions regarding the powers under this Power of Attorney, please examine that document first.

Whenever you exercise any one or more of your powers under this Power of Attorney by signing a document, you should always sign your name as follows: " [your name] , as attorney-in-fact for [name of other person] " Naturally, you need not use the quotation marks.

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.

In other words, the Power of Attorney will remain effective until 1) a Court declares the giver of the power to be incompetent or 2) the giver of the power dies. When either of the foregoing events occurs, your Power of Attorney will thereupon become void and you may not perform any of your powers under it -- and if you do, those acts will be void.

Naturally, upon your death, the Power of Attorney becomes void.

Your Power of Attorney is also revocable. If it is revoked, your power to act under it ends, and you cannot act under it thereafter.

As the attorney-in-fact, you do not become the owner of their property. The Power of Attorney merely grants to you as their attorney-in-fact the powers enumerated in the Power of Attorney, however, those powers may include the power to deal with the property of the principal. Because you have been entrusted with these powers by your principal, you must take great care to exercise those powers for the benefit of your principal only and not for your own benefit.

If anyone ever questions you when you exercise your powers under the Power of Attorney, please be sure to show such person a copy of your Power of Attorney. I do not recommend that you not give them the original signed Power of Attorney, however, you may give them a photo-copy of it. If you record the Power of Attorney, you may, of course, secure certified copies of it from the County Clerk.

4. Blood DWI Reversed Where Chain Of Custody Not Met. State v. Gonzalez 14-2-5429 (App. Div. December 29, 2003). [Unpublished].
Defendant’s conviction for driving under the influence of an intoxicant is reversed here, where there was insufficient evidence that the blood sample used by the municipal court as a basis for its finding of guilt was not compromised or tainted during a flood at one laboratory and its resultant transfer to another; the coinciding identification numbers were an element suggesting the reliability of the evidence, but given the totality of the circumstances, without something further, were not enough to constitute sufficient proof of reliability. [Unpublished] Source: 175 NJLJ 54

Free for friends and client: T- shirts - "My Attorney Fights to Win" Clients and friends wishing a T- shirt they will wear themselves simply need to call the office and advise the day and time they will be in to pick up T-shirt. Large and XL available. Also available are the car coffee holders with American Flag.

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

Editor's Note and Disclaimer: All materials Copyright 2003-2004. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included.
Always schedule an office appointment with an experienced attorney when you have a legal matter. The Rules of Court limit an attorney's ability to discuss matters over the phone. If you have legal questions, you should schedule an in- office consultation.

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