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Friday, July 20, 2007

NJ Laws Newsletter E156 July 8, 2004

In this issue:
1. Estate Planning for Alzheimer and Parkinson Patients and Guardianship
2. Suppression denied where other occupant consents to search.
3. Juvenile Cannot Be Delinquent For Contempt of Court if conduct not prohibited by statute
4. DWI Roadblock approved if it meets constitutional standards.
5. Trenton Waterfront 5K Run Congratulations to Championship team

1 Estate Planning for Alzheimer and Parkinson Patients and Guardianship
Compiled by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section

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

Many Americans are thought to have Alzheimer or Parkinson's disease - yet half of them remain undiagnosed.

It's all too easy to mistake many early Alzheimer or Parkinson's disease symptoms for natural signs of aging. Symptoms can also vary widely among individuals.

Recognizing and treating Alzheimer or Parkinson's disease early is vital. Early diagnosis of Alzheimer or Parkinson'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 or Parkinson's disease discover that they need additional answers. Your doctor is your primary source of information about Alzheimer or Parkinson's disease.

If a person has been diagnosed with Alzheimer or Parkinson's disease, and is still mentally 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 Parkinson 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. Suppression denied where other occupant consents to search. State v. Farmer 366 NJ Super. 307 (App. Div. 2004).
The defendant's motion to suppress evidence was properly denied when the entry to his apartment was consented to by an occupant who reasonably appeared to have authority to consent.

3. Juvenile Cannot Be Delinquent For Contempt of Court if conduct not prohibited by statute. State in the Interest of S.S. 367 NJ Super. 400 (App. Div. 2004).
The question raised by this appeal is whether a juvenile, who originally came before the court solely on account of a juvenile-family crisis petition, may be adjudicated delinquent for contempt of court, a fourth-degree offense under N.J.S.A. 2C:29-9 if committed by an adult. In so doing, we overrule State in the Interest of J.S., 266 N.J. Super. 423 (Ch. Div. 1993). The thrust of our decision is that it is contrary to the legislative intent expressed in the New Jersey Code of Juvenile Justice, and unjustified under existing statutory and common law, for a juvenile status offender to be adjudicated delinquent on account of N.J.S.A. 2C:29-9 without having committed any other act prohibited by the Code of Criminal Justice.

4. DWI Roadblock approved if it meets constitutional standards. State v. Thomas __ NJ Super. __ A-1003-02T3 (App. Div., Decided February 24, 2004).
The DWI roadblock challenged by defendant met the constitutional standard, and we affirmed the decision of the trial court substantially for the reasons stated by Judge Cook in his well-reasoned written opinion dated September 17, 2002.

Trenton Waterfront 5K Run Congratulations to Championship team
Race Date: 6-16-04

7. David Rosenblatt Robbinsville, NJ 37 M 300 17:54
12. Kenneth Vercammen North Brunswick, NJ 44 M U 172 18:43
13. John Guth Bethlehem, PA 29 M 62 18:44
15. Osbourne Shaw Princeton, NJ 29 M 280 18:49
27. Dave Hoch East Brunswick, NJ 49 M U 68 20:32
67. David Gross Morganville, NJ 62 M 59 22:43
72. Gordon D. Deal Kendall Park, NJ 37 M 28 22:52
80. Cheryl Scher East Brunswick, NJ 40 F U 149 23:08
89. Mary Foley New Egypt, NJ 48 F 41 23:31
92. Robert J McGill South Plainfield, NJ 44 M U 106 23:35
96. Dana Gross Bedminster, NJ 38 F U 60 23:41
98. Jim Hake Clinton, NJ 59 M 250 23:42
135. Imme Dyson Princeton, NJ 67 F U 36 25:37
Team Results : http://www.compuscore.com/cs2004/june/trentwf1.htm

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 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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