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Kenneth Vercammen & Associates
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Estate Planning for Multiple Sclerosis Patients and Guardianship of Disabled Adults

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

If a person has been diagnosed with Multiple Sclerosis (MS), it is important to immediately conduct Estate Planning with the assistance of an attorney.

Many Americans are thought to have Multiple Sclerosis - yet half of them remain undiagnosed.

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

Recognizing and treating Multiple Sclerosis early is vital. Early diagnosis of Multiple Sclerosis 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 Multiple Sclerosis discover that they need additional answers. Your doctor is your primary source of information about Multiple Sclerosis.

If a person has been diagnosed with Multiple Sclerosis, 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 Multiple Sclerosis 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.

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 a legally incompetent/ incapacitated person." 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

Legislation (P.L. 1997, c 379) changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents. New Jersey Lawyer March 23, 1998

2. What rights does a incompetent/ incapacitated person lose?

Unless a Court orders otherwise, a ward/ incompetent/ incapacitated person 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/ incapacitated person 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/ incapacitated person or are parents of an unmarried incompetent/ incapacitated person 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/ incapacitated person plus reasons why the incompetent/ incapacitated person 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/ incapacitated person and prepare a report to the Court. The court costs and legal fees often exceeds $4,000.

4. Who can be a guardian?

Generally, a close relative or a person with a close relationship to the proposed incompetent/ incapacitated person who will act to protect the incompetent/ incapacitated person's 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/ incapacitated person prior to hearing?

The proposed incompetent/ incapacitated person 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. Is court approval required to sell real estate if someone is declared incompetent/ incapacitated?

Yes. Your attorney can discuss transferring certain assets to qualify for Medicaid.

Elder law articles are available on the website KennethVercammen.com

To schedule a consultation regarding Estate Planning for Parkinson's patients or Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500 Edison, NJ

   
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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means:
YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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Ken Vercammen articles.

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