by Jose D. Roman | Jan 15, 2025 | Guardianship
Guardianship is a critical legal tool that allows a person, known as the guardian, to make decisions on behalf of another individual who is unable to do so independently. In New Jersey, guardianship is often sought to protect seniors suffering from dementia, adults with intellectual or developmental disabilities, or other individuals who cannot manage their personal or financial affairs. Guardianship is necessary when a person is unable to sign estate planning documents such as a Power of Attorney, Healthcare Proxy and Living Will. Below, we’ll explore the reasons guardianship may be necessary, the types of guardianship available, and the process of obtaining guardianship in the Garden State.
Why You May Need Guardianship
- Person with Dementia and No Estate Plan: As dementia progresses, individuals may lose the ability to make sound decisions about their healthcare, living arrangements, or finances. Without the assistance of a trusted authorized agent or legal guardian, these individuals may be at risk of exploitation or harm. Guardianship ensures that someone is legally authorized to speak on their behald and protect their interests.
- Adults with Intellectual or Developmental Disabilities: When a child with an intellectual or developmental disability reaches the age of 18, they are legally considered an adult, regardless of their cognitive abilities. Guardianship allows parents or caregivers to continue making decisions for them, ensuring they receive the support they need.
- Individuals with Severe Mental Illness or Injury: In some cases, a person may become incapacitated due to a mental illness, traumatic brain injury, or other conditions. Guardianship enables someone to step in and manage their affairs during their period of incapacity.
Types of Guardianship in New Jersey
New Jersey law recognizes different types of guardianship to address varying levels of need:
- Guardianship of the Person: This grants the guardian authority to make personal decisions, such as those related to healthcare, living arrangements, and education.
- Guardianship of the Estate: This allows the guardian to manage the individual’s financial affairs, including paying bills, managing investments, and handling property.
- Guardianship of the Person and Estate: This is a full guardianship covering both personal and financial decisions. It is typically granted when the individual is deemed completely incapable of managing their affairs.
- Limited Guardianship: For individuals who can make some decisions independently but require assistance with others, the court may grant limited guardianship tailored to their specific needs.
The Guardianship Process in New Jersey
While it is recommended to consult an attorney, there are good self-help forms and guides available on the guardianship resources page of the New Jersey Courts website. Obtaining guardianship in New Jersey involves several legal steps designed to ensure the process is fair and in the best interest of the incapacitated individual:
- Filing a Verified Complaint: The process begins with filing a verified complaint (lawsuit papers) in the Superior Court, Chancery Division – Probate Part, along with supporting documents such as affidavits from two physicians or one physician and a psychologist. These professionals must describe in detail under penalty of perjury how the individual is incapacitated.
- Appointment of an Attorney: The court will appoint an attorney to represent the alleged incapacitated person. The attorney will interview next of kin, review medical records, and prepare a report to the court with recommendations. This ensures their rights are protected during the proceedings.
- Place Next of Kin and Other Necessary Parties on Notice: The verified complaint and supporting documents will need to be served on the alleged incapacitated person, their closest next of kin, and agencies who may be interested in the proceedings such as the Division of Developmental Disabilities.
- Court Hearing: A judge will review the evidence and hear testimony from all parties involved. The court will determine whether the individual is incapacitated and whether guardianship is necessary.
- Issuance of Guardianship Letters: If the court grants guardianship, the guardian will receive Letters of Guardianship, which formally authorize them to act on behalf of the incapacitated person.
- Ongoing Responsibilities: Guardians are required to act in the best interest of the individual and may need to file periodic reports with the court, particularly if they manage the person’s finances.
Alternatives to Guardianship
In many cases, proactive planning with legal documents can help avoid the need for guardianship. Key estate planning documents that will avoid the need for a guardianship include:
- Power of Attorney: A power of attorney is a legal document that allows an individual (the principal) to designate another person (the agent) to make financial and legal decisions on their behalf. This can cover tasks such as managing bank accounts, paying bills, and signing contracts. Establishing a power of attorney while the individual is still capable of making decisions can prevent the need for guardianship.
- Healthcare Proxy: A healthcare proxy, also known as a medical power of attorney, allows an individual to appoint someone to make medical decisions for them if they become incapacitated. This ensures that their healthcare wishes are respected without requiring court intervention.
- Advanced Directives: Advanced directives, including living wills, allow individuals to outline their preferences for medical treatment and end-of-life care. By clearly documenting their wishes, individuals can avoid the need for guardianship and ensure their healthcare decisions align with their values.
- Representative Payee: For managing Social Security benefits, a representative payee may be appointed without the need for full guardianship.
These documents are simple to execute when planned in advance and can often eliminate the need for guardianship proceedings.
Conclusion
Guardianship is a significant responsibility and should be pursued when necessary to protect the well-being of a loved one. In New Jersey, the process ensures that the rights of the incapacitated individual are safeguarded while providing the guardian with the legal authority to make critical decisions. If you’re considering guardianship, consult with an experienced attorney to navigate the legal process and explore the best options for your situation.
by Jose D. Roman | Jan 13, 2025 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate
A last will and testament is one of the most important legal documents you can prepare in your lifetime. It ensures that your assets are distributed according to your wishes and provides clarity and peace of mind to your loved ones after you are gone. In New Jersey, the absence of a Will can lead to a host of complications, from family disputes to lengthy probate proceedings. Here’s why having a Will is essential and how you can create one tailored to New Jersey’s legal requirements.
- Control Over Asset Distribution: Without a Will, New Jersey’s intestacy laws dictate how your property will be distributed. This may not align with your personal wishes, especially if you want to provide for specific family members, friends, or charities.
- Protection for Minor Children: A Will allows you to name guardians for minor children, ensuring they are cared for by someone you trust. It also enables you to provide financial support for their upbringing.
- Avoiding Family Conflicts: Clearly outlining your wishes helps minimize misunderstandings and disputes among heirs, reducing the emotional strain on your loved ones during an already difficult time.
- Efficient Probate Process: A well-drafted Will can streamline the probate process, saving time and reducing administrative costs.
How to Create a Last Will and Testament in New Jersey
Creating a valid Will in New Jersey involves specific steps to ensure its enforceability. Here’s a step-by-step guide:
- Determine Your Assets and Beneficiaries:
- Make a comprehensive list of your assets, including real estate, bank accounts, investments, personal property, and digital assets.
- Identify the individuals or organizations you wish to inherit your property.
- Choose an Executor and Trustee:
- The Executor is the person you designate to manage your estate. Choose a trusted individual to manage your estate and ensure your wishes are carried out. This person will handle tasks like paying debts, filing taxes, and distributing assets. It is recommended that you also choose at least one alternate executor.
- The Trustee is the person you designate to manage any funds that are to be held in trust – usually for the benefit of a minor or a person incapable of managing their own affairs. You should also choose a trusted individual and it is also recommended that you choose at least one alternate.
- Choose Guardians for Minor Children:
- If you have children under 18, name guardians to care for them in the event of your death.
- Draft Your Will:
- Working with a qualified attorney ensures compliance with New Jersey laws and reduces the likelihood of challenges. It is not recommended that you use an online template or prepare a holographic (handwritten) Will.
- Sign and Witness the Will:
- In New Jersey, you want to have a “self-proving” Will, which is one that is properly witnessed and notarized. This minimizes the time and cost of probate.
- The Will must be signed by you in the presence of two witnesses who also sign the document. These witnesses should not be beneficiaries to avoid conflicts of interest.
- The Will must also be notarized, either by your attorney or a notary.
- Store the Will Safely:
- Keep the original document in a secure location, such as a fireproof safe, and inform your executor of its location.
- Avoid keeping the Will in a bank safe deposit box because that may be difficult for your Executor to gain access to after you pass away.
Updating Your Will
Life circumstances change, and your Will should reflect those changes. Review and update your Will after major life events, such as:
- Marriage or divorce
- Birth or adoption of a child
- Significant changes in assets
- Death of a beneficiary or Executor
What Happens Without a Will in New Jersey?
If you die without a Will, your estate is distributed according to New Jersey’s intestacy laws. Typically, this means:
- Your spouse and/or children will inherit your assets, with specific proportions depending on the family structure.
- If you have no close relatives, your property may go to distant relatives or even revert to the state.
This process can lead to outcomes you may not have intended and cause unnecessary stress for your family.
Final Thoughts
A Last Will and Testament is more than a legal document; it’s a way to care for your loved ones and leave a lasting legacy. In New Jersey, creating a Will is a straightforward process, but it’s crucial to follow the state’s requirements to ensure its validity. Whether you are drafting your first Will or revising an existing one, taking this step is an act of responsibility and compassion.
If you are unsure where to start, consider consulting an estate planning attorney in New Jersey to guide you through the process. Your loved ones will thank you.
by Jose D. Roman | Jan 10, 2025 | Estate Planning, Living Will
Estate planning is not just planning for death – it’s also planning for incapacity. A Living Will is an essential planning tool everyone needs to ensure that their medical wishes are honored if they ever become unable to communicate them. Here is a short summary of Living Wills, their importance, and how to create one in the New Jersey.
What Is a Living Will?
A Living Will, also known as an Advance Directive, is a legal document that outlines your wishes regarding medical care and end-of-life treatment. It comes into effect if you become incapacitated and unable to express your preferences. A Living Will can specify decisions about life-sustaining treatments, resuscitation efforts, artificial nutrition, and other critical interventions.
Why Is a Living Will Important?
- Ensures Your Wishes Are Honored: A Living Will gives you control over your medical care, even when you cannot speak for yourself.
- Avoid Conflict and Reduce Stress on Loved Ones: Without a Living Will, family members may face difficult decisions about your care. A clear document can ease their emotional burden and prevent potential conflicts.
- Provides Guidance to Healthcare Providers: Medical professionals are bound to follow your instructions as stated in a legally valid Living Will.
How to Create a Living Will in New Jersey
Creating a living will in New Jersey is straightforward but requires careful consideration. Follow these steps to ensure your living will is valid and reflects your intentions:
- Understand State Requirements: In New Jersey, a living will must comply with the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53. The document must be in writing, signed by you, and either notarized or witnessed by two adults.
- Reflect on Your Preferences: Think about your values, beliefs, and medical treatment preferences. Consider consulting with your doctor to understand the implications of different medical interventions.
- Appoint a Healthcare Proxy: You can designate a Healthcare Proxy (also called a Durable Power of Attorney for Healthcare) to make decisions on your behalf if you’re unable to do so. This person should be someone you trust to respect your wishes.
- Draft the Document: Be clear and specific about your wishes to avoid ambiguity. In most instances an attorney will draft your Living Will along with a Durable Power of Attorney, and Last Will and Testament as part of a typical Estate Planning package. However, if you just want a Living Will and are looking for a free or low cost option, use a template specific to your state. The New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care, has developed free forms that are available here. The website Five Wishes also provides very lost cost options for individuals throughout the country here.
- Sign and Formalize the Document: Sign the document in the presence of a notary public or two witnesses. Witnesses cannot be your healthcare proxy or anyone directly involved in your care such as your doctor.
- Distribute Copies: Share copies of your living will with your Healthcare Proxy, family members, and primary care physician. Keep the original in a safe but accessible location.
- Review and Update Regularly: Life circumstances and medical advancements may change your preferences. Review your living will periodically and make updates as needed.
Frequently Asked Questions
1. Can I change my Living Will? Yes, you can update or revoke your living will at any time, as long as you are mentally competent. Be sure to inform everyone who has a copy of the document about the changes.
2. What happens if I don’t have a Living Will? Without a Living Will, medical decisions may be made by your family members or healthcare providers based on what they believe is in your best interest. This can lead to stress and potential disagreements.
3. Is a Living Will the same as a Last Will and Testament? No, a Living Will addresses healthcare decisions during your lifetime, while a Last Will and Testament outlines the distribution of your assets after death.
Final Thoughts
A Living Will is a powerful tool to ensure your medical wishes are respected and to provide peace of mind for you and your loved ones. In New Jersey, the process of creating a Living Will is straightforward and accessible. It is also one of the few legal documents you can obtain for free and complete on your own. By taking the time to prepare this document, you can take control of your future care and alleviate potential challenges for your family.
Start planning today by consulting with a legal professional or using reliable resources to draft your Living Will. It’s a small step that can make a big difference during a difficult time.
by Jose D. Roman | Jan 8, 2025 | Estate Administration, Estate Planning
Probate can be a confusing and emotional process, especially if you are dealing with the loss of a loved one. If you live in New Jersey or are handling the estate of someone who resided there, it’s important to understand how probate works in the state. Here’s a quick guide to help you navigate the probate process in New Jersey.
What Is Probate?
Probate is the legal process through which a deceased person’s estate is settled and distributed to beneficiaries. During probate, the court validates the deceased’s will (if one exists), appoints an executor or administrator to oversee the estate, and ensures that debts, taxes, and other obligations are paid before assets are distributed.
Is Probate Necessary in New Jersey?
In New Jersey, whether probate is necessary depends on the type and value of the assets left behind. Some assets, such as jointly owned property, life insurance proceeds with named beneficiaries, or accounts with payable-on-death (POD) designations, bypass probate. However, assets solely in the deceased’s name typically require probate to transfer ownership.
Types of Probate in New Jersey
New Jersey has two primary probate processes:
- Formal Probate:
- Required when there is a dispute about the will or the estate’s administration.
- Overseen closely by the Surrogate’s Court.
- Informal Probate:
- The most common process when there is no dispute.
- Streamlined and less costly, as it requires minimal court involvement.
Steps in the Probate Process
- File the Will with the Surrogate’s Court:
- The executor named in the Will must file the original will and a certified copy of the death certificate with the Surrogate’s Court in the county where the deceased resided.
- If there is no Will, the court will appoint an administrator, usually a close family member, to handle the estate.
- Appoint an Executor or Administrator:
- The court officially appoints the executor or administrator to act on behalf of the estate.
- This individual receives “Letters Testamentary” (if there’s a will) or “Letters of Administration” (if there isn’t a will), granting them legal authority to manage the estate.
- Notify Creditors and Beneficiaries:
- The executor must notify all beneficiaries named in the Will and publish a notice to creditors, allowing them to make claims against the estate within a specified timeframe.
- Inventory the Estate’s Assets:
- The executor compiles a list of the deceased’s assets, including bank accounts, real estate, personal property, and investments.
- Pay Debts and Taxes:
- The executor ensures all outstanding debts, including medical bills, funeral expenses, and taxes, are paid before distributing the remaining assets.
- Distribute Assets to Beneficiaries:
- Once all obligations are met, the executor distributes the remaining assets according to the will or, if there’s no will, New Jersey’s intestacy laws.
How Long Does Probate Take in New Jersey?
The timeline for probate varies depending on the complexity of the estate. Informal probate can take as little as a few months for simple estates, while complex or contested cases may take a year or more to resolve.
Avoiding Probate in New Jersey
There are ways to minimize or avoid probate in New Jersey:
- Create a living trust and transfer assets into it.
- Designate beneficiaries for accounts and insurance policies.
- Hold property jointly with rights of survivorship.
Do You Need an Attorney?
While New Jersey’s probate process is relatively straightforward, hiring an attorney can be beneficial, especially for larger or more complicated estates. An attorney can help navigate legal requirements, resolve disputes, and ensure the executor fulfills their duties properly.
Conclusion
Probate in New Jersey is a manageable process, but understanding the steps and requirements can help reduce stress and ensure the estate is handled efficiently. If you’re dealing with probate, consider consulting a qualified attorney to guide you through the process and provide peace of mind.
by Jose D. Roman | Nov 27, 2024 | Estate Planning, Irrevocable Funeral Trusts, Medicaid, Trusts
Qualifying for Medicaid is often the only way most individuals can afford long term nursing care, whether that care is received in a long term care facility such as a nursing home or at home. In New Jersey, a long term Medicaid applicant is only permitted to have $2,000.00 in available assets in order to qualify. Many individuals are required to “spend down” their assets to meet the $2,000.00 limit. One tool that can help individuals qualify for Medicaid, while also saving for inevitable funeral expenses is to establish an Irrevocable Funeral Trust. In this post, we’ll explore what an irrevocable funeral trust is, how it works, and how it can assist with Medicaid planning in New Jersey.
What Is an Irrevocable Funeral Trust?
An Irrevocable Funeral Trust is a legal arrangement that allows individuals to set aside funds to cover funeral and burial expenses. Once funds are placed in the trust, they are managed by a trustee and cannot be withdrawn, altered, or revoked by the individual who established the trust. This ensures the money is exclusively used for pre-arranged funeral costs. While the funds are irrevocable, it is often easy to reassign the funds to a different funeral service provider.
Unlike a revocable trust, which can be changed or terminated, an Irrevocable Funeral Trust offers specific benefits, particularly in the context of Medicaid planning. The funds in an Irrevocable Funeral Trust are generally exempt from being counted as an asset when determining Medicaid eligibility. With the average New Jersey funeral costing in the $10,000.00 to $15,000.00 an Irrevocable Funeral Trust can be a powerful planning tool.
How Does an Irrevocable Funeral Trust Work?
- Establishing the Trust:
- The individual works with a funeral provider or financial institution to set up the trust. They specify the funeral and burial arrangements they want, including items such as a casket, service, and burial plot.
- Funding the Trust:
- The individual transfers a sum of money into the trust, typically based on the anticipated costs of the funeral and burial arrangements.
- Management of Funds:
- The funds are managed by the trustee and used exclusively for the purposes outlined in the trust. Any remaining funds after the funeral services will revert to the State of New Jersey if you are a Medicaid recipient or in other cases to your estate.
Benefits of an Irrevocable Funeral Trust for Medicaid Eligibility
Medicaid is a need-based program, meaning applicants must meet strict income and asset limits to qualify. In New Jersey, individuals often find it challenging to meet these requirements while also setting aside money for necessary future expenses. Here’s how an Irrevocable Funeral Trust can help:
- Asset Protection:
- Funds placed in a Medicaid compliant Irrevocable Funeral Trust are not counted as part of an individual’s assets for Medicaid eligibility. This means you can reserve money for funeral expenses without jeopardizing your ability to qualify for Medicaid.
- Spend-Down Strategy:
- If an individual has excess assets that prevent them from qualifying for Medicaid, funding an Irrevocable Funeral Trust can be an effective spend-down strategy. By transferring assets into the trust, the individual reduces their countable resources while ensuring their end-of-life expenses are covered.
- Peace of Mind:
- An Irrevocable Funeral Trust provides certainty that your funeral and burial arrangements are pre-funded and will not burden your loved ones during a difficult time.
Key Considerations for New Jersey Residents
- State-Specific Rules:
- New Jersey has specific guidelines regarding how the funds in an Irrevocable Funeral Trust can be spent. Services ancillary to the funeral costs may not be permitted. Some states also have a maximum contribution limit. It is essential to work with a knowledgeable professional to ensure compliance with these limits.
- Irrevocability:
- Once funds are placed in the trust, they cannot be withdrawn or repurposed. This is a binding arrangement, so careful planning is crucial.
- Choosing a Trustee:
- Select a reputable funeral home or financial institution to manage the trust. Transparency and reliability are key factors to consider. In New Jersey, Funeral Planning CHOICES, the New Jersey Prepaid Funeral Trust Fund is the leading funeral prefunding product in the state and one of the largest prepaid funeral trusts in the country.
Final Thoughts
An irrevocable funeral trust can be a valuable part of Medicaid planning for New Jersey residents. It offers a way to preserve assets, ensure Medicaid eligibility, and relieve loved ones of financial and emotional burdens associated with end-of-life arrangements. However, navigating the complexities of Medicaid and trusts requires careful planning and professional guidance.
If you’re considering an IFT, consult with an elder law attorney or a trusted funeral director to ensure that your trust is properly established and aligned with New Jersey’s requirements.