Medical Marijuana: Smoke At Your Own Risk

The use of marijuana, whether for medicinal or recreational purposes, is a hotly debated issue in our country.  Like many divisive issues, strong opinions exist on both sides of the debate.  There are currently twenty-eight (28) states, plus the District of Columbia, that have passed laws permitting the use of medical marijuana, subject to various limitations.  Eight states, plus the District of Columbia, have passed laws legalizing the use of recreational marijuana. 

In 2010, New Jersey passed into law the New Jersey Compassionate Use Medical Marijuana Act.  There are over 11,000 New Jersey residents who have been issued ID cards permitting them to purchase medical marijuana at one of the State’s five (5) dispensaries.  New Jersey’s medical marijuana law, like all other similar laws around the country that legalize the use of medical or recreational marijuana, is at odds with Federal Law that prohibits the use of marijuana.  Recently, the conflicts between State and Federal Laws relating to the use of marijuana have met head-on in New Jersey Federal Courts, mainly in the context of employment law.

For example, on February 22, 2017, the United States District Court in New Jersey granted a motion to dismiss by the defendant employer, Robert Half Corporation.  The plaintiff, Thomas Barrett, was a New Jersey medical marijuana ID holder and an employee of Robert Half Corporation.  He was terminated from his employment after testing positive for marijuana. Although Mr. Barrett gave notice to his employer that he was a participant in the medical marijuana program due to severe back pain from an auto accident, the Federal District Court judge ruled that the notice did not constitute a request for accommodation of a disability.  For that reason, Mr. Barrett’s case was dismissed.

By way of further example, Jason Wild was diagnosed with cancer.  To help deal with the effects of cancer, his doctors prescribed him medical marijuana.  He worked during the day at a funeral home, and smoked medical marijuana at night to help ease his pain.  His employer, Carriage Services, learned about Mr. Wild’s medical marijuana use when he disclosed it to hospital personnel after he was involved in a car accident.  Upon receiving this information, the employer fired Mr. Wild.

Mr. Wild filed a lawsuit against Carriage Services alleging violations of New Jersey’s Law Against Discrimination.  He also asserted a claim for Defamation arising out of his bosses’ alleged statements to other funeral directors warning them that Mr. Wild is a drug addict.  On February 28, 2017, Carriage Services filed a motion to dismiss Mr. Wild’s complaint.  In support of its motion, Carriage Services advanced the following arguments: (1) because Mr. Wild never requested an accommodation related to his medical marijuana use, he does not have a valid claim pursuant to New Jersey’s Law Against Discrimination, and (2) the New Jersey Compassionate Use Medical Marijuana Act is pre-empted by Federal Law.

As of the date of this article, the Federal Court has not yet ruled on Carriage Service’s motion to dismiss. Undoubtedly, both objectors and advocates of medical marijuana will be keeping a close eye on the outcome of Mr. Wild’s case.  Interestingly, there is legislation pending in the New Jersey State Senate and Assembly that would essentially make it illegal for an employer to take adverse employment action against an employee who is a registered medical marijuana ID holder and tests positive for marijuana use.  The bill, S-2161, has not yet received an up or down vote.   Unless and until this legislation is passed or there is a change in Federal Law, New Jersey medical marijuana users will have to smoke at their own risk.​

To discuss the interplay between State and Federal Laws relating to the use of marijuana, or any other legal issues, feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at Rmalc@bathweg.com.

Jointly Owned Property and Inverse Condemnation

There are two (2) ways that property can be taken by the government.  The most common way is through the invocation of the government’s power of eminent domain also known as condemnation. The other way property can be taken by the government is through inverse condemnation. This indirect way of taking property occurs in two (2) ways.  One way is very obvious because it consists of the government physically occupying property without permission from the property owner.  The other less obvious way is through the regulation of property which adversely effects the use or value of a parcel of property.  In order for the regulation of property to result in a constitutionally forbidden taking of property, it must deprive the property owner of substantially all of the beneficial use of the land.

In the case of Murr v. State of Wisconsin, the United States Supreme Court is being asked to consider an inverse condemnation claim involving two (2) adjacent lots that are jointly owned.  After those lots were purchased, a land use or zoning regulation was adopted that changed the amount of developable land that was required in order to build a house.  A house, therefore, could not be built on either lot.  But if the two (2) lots were combined into a single lot then one house could be built.In Murr, the landowners contend the land use or zoning regulation made each of their lots unbuildable because neither one had the minimum developable area required by that regulation.  They, thus, argue they had a claim for inverse condemnation.

The Wisconsin Supreme Court disagreed.  The state court concluded that because the lots were in joint ownership they merged into a single lot which met the minimum developable area for a house.  As a result, the inverse condemnation claim was dismissed because the property owners had not been deprived of substantially all of the beneficial use of their property.

If the United States Supreme Court agrees with the ruling of the Wisconsin court regarding lot merger, the property owners will not be successful with their inverse condemnation claim.  That result will occur because they will not have lost substantially all of the beneficial use of their land because a house could be constructed on the single larger lot created by the merger of the two (2) adjacent parcels.

Claims for inverse condemnation based on land use regulations have been the subject of many court decisions in New Jersey.  Such claims are still being litigated.  For instance, there is currently a dispute between property owners and the New Jersey Department of Environmental Protection (“NJDEP”) over development permits for two (2) adjacent oceanfront lots.  NJDEP has taken the position that the common owners are not entitled to permits to build two houses even though the property owners have separately paid the real estate taxes for those adjacent jointly-owned lots.

The lesson to be learned from Murr is to avoid taking title to adjacent property in the name of the same owner.  The better practice is to keep title to the lots in different names so the government cannot claim that adjacent parcels of property merged into a single lot.

If you have any questions regarding the impact of Murr v. State of Wisconsin on eminent domain, condemnation, inverse condemnation or land use and zoning regulations, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.  Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years. Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

Cancellation of Real Estate Contract By Email Finally OK

The New Jersey Supreme Court ruled on April 3, 2017 in Conley v. Guerrero, that residential real estate contracts can properly be cancelled by email or fax.  The central issue in the case was whether the Defendant-Seller of a residence effectively terminated the Contract for Sale with Plaintiffs-Buyers during the “three day” attorney review period set forth in the Contract for Sale.

None of the parties disputed the facts of the case.  The Buyer and Seller signed a Contract For Sale that included the standard attorney review clause, mandated by the Court in New Jersey State Bar Ass’n v. New Jersey Ass’n of Realtor Boards, 93 N.J. 470, 476-77 (1983), modified, 94 N.J. 449 (1983), and N.J.A.C. 11:5-6.2(g)(2), which gave the parties’ respective attorneys three business days to review the contract before it became legally binding.  Specifically, the “three day attorney review” clause, provided:
The Buyer or the Seller may choose to have an attorney study this Contract. If any attorney is consulted, the attorney must complete his or her review of the Contract within the three-day period. This Contract will be legally binding at the end of this three-day period unless an attorney for the Buyer or the Seller reviews and disapproves of the Contract . . . If an attorney for the Buyer or the Seller reviews and disapproves of the Contract, the attorney must notify the REALTOR(S) and the other party named in this Contract within the three-day period. Otherwise this Contract will be legally binding as written. The attorney must send the notice of disapproval to the REALTOR(S) by certified mail, by telegram or by delivering it personally. The telegram or certified letter will be effective upon sending. The personal delivery will be effective upon delivery to the REALTOR’s office. The attorney may also, but need not, inform the REALTOR(S) of any suggested revision(s) in the Contract that would make it satisfactory.
After the Contract For Sale was executed, Seller received a competing offer and entered into a Contract with a third party.  The Seller’s attorney sent a letter via email and fax advising Plaintiffs’ attorney that the agreement was terminated, stating, “This will confirm that the above referenced contract has been terminated by the seller and the realtors are hereby authorized to release the initial deposit monies to the buyers.”  It was undisputed that Plaintiffs’ attorney and the agent received the letter within the three-day period.

Despite having received the letter terminating the Contract, Plaintiffs’ attorney faxed a letter to Defendant’s attorney asserting that the original contract was in “full force and effect.” because “the 3 days within which an attorney may terminate this contract has expired.” The Buyers argued that the Sellers were required to strictly adhere to the contractual provision specifying the methods of delivery as certified mail, by telegram or by delivering it personally, even though the Buyers’ attorney admitted that the Buyers received the cancellation notice.

The Court found that strict enforcement of the contractually identified methods of delivery would frustrate the contract’s overarching purpose and elevate form over the protective reasons for the attorney-review provision.  Therefore, the Court held, “notice of disapproval of a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remains three business days.”  This case finally brings New Jersey residential real estate contracts into the digital age.

The attorneys at Bathgate, Wegener & Wolf, P.C. are well versed in all aspects of residential real estate contracts.  If you have questions about your real estate contract, please contact us at 732-363-0666.

The Iconic Building That Is Home To Bathgate, Wegener & Wolf

Many people leaving the Garden State Parkway at Exit 89 or driving on Cedar Bridge Road wonder what activities occur under the steeply pitched roofs of the unique building known as One Airport Road, Lakewood, New Jersey.  That iconic building is the home of the Bathgate Wegener & Wolf law firm.  Our law firm employs 45 people and we occupy the entire building.  Our unique building has been named in an architectural guide book as one of 150 Best Buildings in New Jersey.   
This truly unique building was designed by Noboru Kobayashi.  The architectural guide book describes the building as having a “spare and elegant design … made up of pure geometric forms that recall both Shinto temples and the Louis Khan Bath House in Ewing Township.  The complex consists of nine square pavilions of ascending dimension offset from each other on diagonal axes.  The pavilions are capped with steeply pitched pyramidal roofs covered by wood shingles”.

From the unique roofline it might seem there are several buildings.  Actually, there is only one building that has a roofline consisting of nine pyramids.  Although it appears that the pavilions are separate structures, the building has a unified floor plan consisting of several intersecting ovals.
​Beginning with its stone entry terraces, the building has many unique features. Our main entrance is framed by fountains, a moat and a waterfall.  The fountains are not only visually dramatic but also generate a pleasing sound as the water cascades down the waterfall and is propelled high into the air before splashing into the largest of the reflecting pools.

​The interior of the building is graced by two gardens that provide a very pleasing internal landscape of shrubbery and flowers. One of those gardens has its own pool. The internal gardens, open to the sky, provide light and air that enlivens the interior of several of the pavilions.​The reception area has a soaring ceiling capped by a glass peak and brick walls that are accented by the soft glow of wall mounted lights.  From that vantage point our clients and visitors are able to view the interior gardens. 

​A truly attractive feature of one of the pavilions is a library constructed as a room within a room.  This pleasing architectural dimension permits access to our bound book collection without the stacks of shelves typically associated with traditional libraries.  In our modern law firm, each of our 45 individual computer terminals has direct access to the latest version of computerized legal research software.

​Anyone who is interested in touring the public areas of the Bathgate Wegener & Wolf, P.C. office will have that opportunity in conjunction with the upcoming immigration seminar that we will host.

What Is Guardianship In New Jersey and How Does It Work – Part 3 of 3

 
In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series, we discussed the court hearing process, the possibility of the appointment of a Temporary Guardian, and the bonding requirements for a Guardian.  In Part 3 of this 3 part series, we discuss some of the tasks that must be performed by the Guardian, the reports which must be filed by the Guardian, and the compensation that a Guardian may receive for performing his or her duties.C.  AFTER THE JUDGEMENT OF INCAPACITY AND APPOINTMENT OF GUARDIAN
Congratulations! You’ve been appointed as Guardian of your loved one.  Just when you thought your involvement with the Court is over, now the Court oversight begins.  Being appointed as Guardian imposes significant responsibility and record-keeping.  Further, once the Court appoints you as Guardian of your loved one, you do not have unfettered rights to your loved one’s assets, income and health care decisions.  If the Guardian wishes to sell any of the incompetent person’s property, the Guardian must make an application to the Court to do so.  Similarly, Court approval is necessary if the Guardian seeks to gift assets for the purpose of estate or Medicaid planning. (NJSA 3B:12-49,  3B:12-58 and 3B:12-59).

 

  1. Filing of Reports

The Guardian must complete several reports each year, beginning with an initial Inventory of Assets.  This initial inventory is usually due within seven (7) to thirty (30) days of the appointment.  Further, each year, the Guardian must complete a Report of Well Being of the incompetent person and must also complete an Accounting of all funds that the Guardian has handled during the year, all income received, and all expenses that the Guardian has paid.  Both of these annual reports are submitted to the Surrogate Court of the County that decided the Guardianship Application.  If the Court has any questions regarding the reports, the Guardian may have to provide supplemental information.
 2.    Commission
A Guardian may receive monetary compensation for his or her work as Guardian.    The commission amounts are set forth in NJSA 3B:18-24 and 3B:18-25.  Presuming the incompetent person has assets and income, the Guardian is entitled to the following commissions on an annual basis without prior court approval:

  1. Six percent (6%) on the income received on behalf of the incompetent person, and
  2.  $5.00 for each $1,000.00 of principal corpus for the first $400,000.00, and $3.00 for each $1,000.00 of principal corpus on amounts exceeding $400,000.00.

Therefore, by way of example only, if the incompetent person has assets totaling $1,000,000.00, and receives $100,000.00 worth of income in a year, the Guardian is statutorily entitled to $3,800.00 on the principal and $6,000.00 on the income for a total annual commission of $9,800.00.

​The Guardian may also receive a termination/distribution commission.  The amount of the termination/distribution commission is based, in part, not only upon the value of the assets, but also upon the length of time the Guardian has acted as Guardian when the termination or distribution occurs.  These termination commission amounts are set forth in NJSA 3B:18-28.

D. CONCLUSION
Being appointed a Guardian for your loved one imposes certain record-keeping and report filing requirements.  Once you are appointed Guardian, the court involvement in your loved one’s estate does not end.  While the Guardianship application process is concluded, the Court oversight begins.  This Court oversight continues until the Guardianship is terminated.

The best way to reduce the expenses associated with a Guardianship is to discuss and finalize your estate plans, long term care plans and Power of Attorney preferences with a knowledgeable attorney while you are still mentally competent and can make those decisions on your own.  As our society ages and as the law continues to recognize the independent legal rights of “children” once they reach eighteen (18) years of age, the need for Powers of Attorney and Guardianships is becoming increasingly important.  Having a Power of Attorney or estate plan is no longer limited to the rich and famous or elderly; even college-aged children should consider having Powers of Attorney in place. If there are questions regarding your or a loved one’s mental competency to sign a Power of Attorney, ask your family physician or neurologist to perform a competency exam such as the mini mental status exam.

If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Navigating the maze of Guardianship applications on your own can be both confusing and overwhelming.  Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  This may cause tension and misunderstandings between you and your loved one if you make the application on your own.  Having an attorney to prepare the Guardianship application and to guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings.

If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact Bathgate, Wegener & Wolf, P.C. at 732-363-0666 to discuss your and your loved one’s legal options.

Photo by Luwadlin Bosman on Unsplash

Jury Rules Against Home Improvement Contractor Over Sandy Contract

Nearly four years after Superstorm Sandy made landfall in Ocean County, NJ, a jury has rendered its first verdict in favor of  homeowners against a home improvement contractor repairing Sandy damage.  In August, an Ocean County jury sided with the homeowners in their suit against Price Homes Group (PHG).  PHG was a fledgling home building contractor that, like many others, spawned in the aftermath of Superstorm Sandy.  The entity was formed 100 days after the most powerful storm to affect the Jersey coast made landfall.  The storm caused billions of dollars in property damage as a result of wind and flood.  Despite being newly formed, PHG enjoyed the illustrious status of being a “qualified builder” under the State’s RREM (Reconstruction, Rehabilitation, Elevation and Mitigation) Program administered by the Department of Community Affairs (DCA). Under the RREM Program, the DCA checked whether a contractor was a registered Home Improvement Contractor licensed to do business in New Jersey, and whether it had been debarred from doing business with the government.  By now many have heard horror stories of the RREM program.  RREM later allowed homeowners receiving such grants to select their own contractors.  Sadly, in spite of a trial victory for the homeowners, whether they will ever see any of the $300,000 in damages awarded against PHG remains to be seen.  The three principals of the company have declared bankruptcy and PHG vows to appeal the verdict.  There are at least fifteen other such suits against PHG.

Whether embarking on a home improvement project as a result of Sandy or otherwise, the lessons of the PHG experience are apparent to homeowners and contractors alike.  As shocking as it may seem, many enter into home improvement projects, often as big or bigger than the home purchase itself, without a written contract that identifies the scope, cost and timing of such a project, and do so without checking to see whether a contractor is a registered Home Improvement Contractor. The NJ Consumer Fraud Act (CFA) requires that any residential home improvement agreement over $500 must be in writing, as well as any change orders, and include:

  • Start and completion date
  • Agreed price
  • Contractor’s HIC number
  • Three day right to rescind with full return of deposit
  • Copy of Contractor’s general liability insurance declarations page
  • The toll-free number of the NJ Division of Consumer Affairs.
A contractor that fails to comply with the CFA runs the risk of exposing itself to a consumer fraud action, in addition to the standard breach of contract action by a homeowner that the work does not meet the terms of the contract and is not completed in a workmanlike manner, and/or consistent with applicable building codes.  Any contractor found to have caused an ascertainable loss as a result of a “deceptive business practice” and to comply with the Act’s requirements, runs the risk of not only damages for  the costs of repairs to properly complete the project, but also treble (tripling of) damages, attorney’s fees and costs of suit.  There is New Jersey case law that further allows such damages to be assessed against the principals or officers of a corporation (“pierce the corporate veil”) if actual participation in such deceptive business practice by the principal or corporate officer is shown.  While budgets may be strained by any contemplated home improvement project, it behooves a homeowner to have a consultation with a qualified attorney before blindly wading into the treacherous waters of home improvement.  If you earn your living as a New Jersey Home Improvement Contractor, you must be aware of your legal obligations. You must register with the Division of Consumer Affairs consistent with the Contractor Registration Act and be sure your contracts are Consumer Fraud Act compliant, otherwise your next project may be “on the house”.  A home improvement contract that fails to comply with the CFA is deemed void and the contractor’s only right to receive compensation for such work and materials is the value of such services and materials provided (quantum meruit) without any profit.  It has been held that even quantum meruit recovery is questionable because the purposes of the CFA are to punish the wrongdoer and deter others from such conduct.Brian McAlindin, Esq. is a Partner at Bathgate, Wegener & Wolf, PC and a Certified Civil Trial Attorney with expertise in construction litigation on behalf of both homeowners and contractors, as well as personal injury actions.

What Is Guardianship In New Jersey and How Does It Work – Part 2 of 3

In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series What Is Guardianship In New Jersey and How Does It Work, we discuss what will happen at the court hearing.

THE HEARING
 A.        Notice of Hearing Date
Approximately 2 weeks after the application to have your loved one declared incompetent is submitted, the Court will set a date for the initial hearing. Once the initial hearing is scheduled, the person who seeks to be appointed as the Guardian must notify the alleged incompetent, his or her next of kin and anyone else who has a degree of relationship superior to that of the applicant of the date and time of the hearing, and the person’s ability to challenge the application.  In certain circumstances, the Office of Public Guardian must also be notified of the application and given an opportunity to review and respond to it.  The next of kin or other interested party may hire an attorney to represent their interests in the application or they may represent themselves, pro se.  The next of kin or interested party is permitted to challenge both  the requested declaration that your loved one is  mentally incompetent and your appointment as Guardian.  Because your loved one will receive a copy of the filed papers, your loved one will be advised not only that there is a request to have him or her  declared mentally incompetent, but also of the name(s) of the person(s) seeking Guardianship. 

B.        Appointment of Temporary Guardian
On occasion, the Court will appoint a Temporary Guardian for your loved one while the Guardianship application is pending.  The Temporary Guardian serves until the Court makes its final determination regarding a permanent Guardian.  The Temporary Guardian can be the person(s) submitting the application for Guardianship, or it can be someone else selected by the Court.  If the Court does not appoint the applicant as the Temporary Guardian, the Court may appoint an attorney (separate from the court appointed attorney who will represent your loved one in the Guardianship application process) or an accountant or other professional as the Temporary Guardian. The fees charged by the Temporary Guardian are usually paid from your loved one’s assets.

C.        Court Appointed Attorney For Alleged Incompetent Person
The Court will appoint an attorney to represent your loved one.  The Court appointed attorney is not free.  He or she is usually paid from the assets of the alleged incompetent.  This attorney will not only present your loved one with a copy of the papers submitted to the court, but will also spend some time with your loved one, interview him or her, will likely interview the guardian applicant, and will research whether your loved one previously signed a Power of Attorney or a Last Will and Testament.  Once the Court appointed attorney’s research and interviews are complete, she will submit a report of recommendations to the Judge.  Although the court appointed attorney represents your loved one, your loved one may hire his or her own private attorney at your loved one’s own expense to represent his interests and challenge a Guardianship application.

D.        Conduct of the Hearing
If the Guardianship Application is not contested and the Court appointed attorney agrees with the Application, then the Court may not require anyone to be present at the hearing and the Judge  will make his decision based upon the papers presented to him.  However, if the Guardianship Application is contested, during the initial hearing the Judge will consider:  (a) the written papers submitted to it that support and oppose the Guardianship, and (b) oral arguments (but not witness testimony) regarding the Guardianship Application.  Usually, live witness testimony is not presented to the Court during the initial hearing.  In both contested and uncontested Guardianship Applications, the Court will review and consider the observations and recommendations of the court appointed attorney.  Sometimes, the Court decides that it does not have enough information to make an immediate determination on the Guardianship application.  If that is the case, the Court will schedule another hearing and may request that additional information be submitted to the Court.  At the second hearing, the Court may hear sworn testimony from (a) the person alleged to be incompetent, (b) the person applying to be the Guardian of the alleged incompetent, (c) the physicians, psychologist or psychiatrist who conducted examinations of the alleged incompetent, and (d) any other persons with an interest in the application or who have information regarding the alleged incompetent.  Only after receiving all the information, evidence and testimony that the Court deems necessary and appropriate, will the Judge decide whether your loved one needs to have a Guardian appointed, and if so, who will be appointed the Guardian.

E.        Bond Amount
In addition to deciding whether your loved one is mentally incapacitated and who should serve as Guardian, the Court will also decide the amount of the bond, i.e.,  insurance policy, that must be obtained by the person appointed as Guardian.  The amount of the bond is generally based upon the value of the assets of your loved one.  The bond is obtained by the potential Guardian, usually after a general background check, credit check and payment of a bond premium.  The bond premium must be paid every year, and usually can be paid from the incompetent person’s assets.

F.        Conclusion
If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  Additionally, the next of kin of the alleged incapacitated person, along with those person(s) who have a degree of relationship superior to the applicant requesting to be appointed as Guardian must receive notice of the application.  This may cause tension and misunderstandings between you and your loved ones if you make the application on your own.  Only after a Judge is confident that he or she has received and reviewed all of the evidence and testimony necessary to make a determination regarding your loved one’s mental competency and appropriateness of a Guardianship will a judge make his or her ruling. If a Guardianship is granted, that ruling will include a Judgment of Legal Incapacity, the name of the person appointed as Guardian and the amount of bond that will need to be secured before the appointment of the Guardian can be finalized.   Having an attorney prepare the Guardianship application and guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings that can accompany a Guardianship application.  In Part 3 of this 3 part series, we will discuss a Guardian’s duties after being appointed by the Court.

If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options at 732-363-0666.

Photo by Luwadlin Bosman on Unsplash

What Is Guardianship In New Jersey and How Does It Work – Part 1 of 3

A. INTRODUCTION 
In the past ten (10) years, the number of Guardians appointed in the State of New Jersey has increased significantly.  According to data compiled by the New Jersey Courts, Guardianship appointments increased from less than 2,000 per year between 2006 and 2008 to 2,600 in the year 2014 and that number continues to rise.  As the elderly population grows and as people become more aware of the necessity to have estate plans and other protections in place for their special needs child, it is anticipated that the number of Guardians appointed will continue to rise.  To begin our discussion of Guardianship, let’s first define “Guardianship” and then present a few common scenarios which people may encounter with their loved ones that may signal the need for a Guardianship.

B. WHAT IS GUARDIANSHIP?
Guardianship is a legal process appointing a ‘competent adult’ (Guardian) to be responsible for the care, custody and control for a ‘vulnerable or incapacitated person’ often referred to as a (ward).

SCENARIO NO. 1:    
You notice that your elderly loved one’s memory is beginning to fail.  Your loved one has always been very independent and insists on handling everything on her own.  Unfortunately, your loved one has forgotten to pay a bill or two.  So, when you make your weekly visit, you look over your loved one’s checkbook and help your loved one reconcile her bills.  Gradually you become more involved in your loved one’s finances and start to sign her name to checks.  You only sign her name to checks with her approval and you never sign checks made out to you or your family.  Is this legal?
ANSWER: No. As good as your intentions may be, it is never appropriate to sign your loved one’s name.  Instead, you should sign your name as  your loved one’s Agent under a Power of Attorney or as a Court Appointed Guardian or Conservator for your loved one.
SCENARIO NO. 2:      
Your autistic child is developmentally delayed and just celebrated his 18th birthday.  Because your child is developmentally disabled, as his parent, do you have an automatic right to handle his finances, access his medical records and make health decisions on his behalf?
ANSWER: No.  Once a child turns 18 years old, parents no longer have a legal right to access their child’s medical records or to make health care decisions for the child.  This is true even if the child is mentally disabled and lacks the cognitive ability to make such decisions.  In these circumstances, the parents should apply for a Guardianship of their disabled child once that child reaches 18
SCENARIO NO. 3: 
​Your mother was diagnosed with Alzheimer’s dementia last year.  At first it wasn’t too bad, but now your Mom confuses the identity of her son, sometimes mistaking him for her husband who passed away two (2) years ago.  Mom also frets that she doesn’t have enough money to pay her monthly Homeowners Association dues or to last her in case she gets sick.  In fact, she has over $1 million in the bank.  You find a Power of Attorney on the internet, print it out and have your mother sign it naming you as her Agent under the Power of Attorney.  When signing the Power of Attorney, Mom says that she doesn’t understand all of that legal jargon but as long as it will help protect her money, she’ll sign it.  You witness the signature and have one of your friends notarize the document.  Is the Power of Attorney valid?
ANSWER: No.  While the Power of Attorney document meets the requirements of NJSA 46:2B-8.9 and NJSA 46:14-2.1 that it be signed by the person granting the authority, bear at least one witness signature and is notarized, for a Power of Attorney to be valid, both of the following conditions must also be met:

    1. The person signing the Power of Attorney must be at least 18 years of age, and
    2. The person must have mental competency sufficient to enter into a contract, meaning that the person must understand the nature, extent, character and effect of the act which the person is performing.

It is questionable whether condition 2 (having sufficient mental capacity to enter into a contract) is met.  Therefore, in this scenario, you should first consult with a physician who can provide a mini mental status exam or other examination to determine Mom’s  mental capacity.  Depending on the results, Mom may enter into a Power of Attorney, or a Guardianship may be required.  Because of the potential complexity of this scenario, it is recommended that you consult with an attorney familiar with elder care law and estate planning.

SCENARIO NO. 4: 
​You believe that your college-aged child is not being forthright with you regarding her health.  You contact her doctor to speak with her regarding your daughter.  When you call the office, the office staff is “rude” and refuses to discuss your daughter’s health saying that the HIPAA laws do not allow it. You insist that, as her parent and as the person who is paying for the health insurance, you have a right to know about your child’s health.  The medical office still refuses you access to your daughter’s medical records and refuses to allow you to speak with the doctor.  Do you have a legal right to see your daughter’s medical records?
ANSWER: No.  As in Scenario No. 2, even though you are the parent and even if you are the one paying for the health insurance, once a child reaches eighteen (18) years of age, a parent is no longer automatically permitted to access the child’s medical records or make health decisions on behalf of his or her son or daughter. If the child is of legal age (currently 18) and is mentally competent, then the child may sign a General Power of Attorney and/or a Healthcare Power of Attorney that grants the parent permission to access the child’s finances and/or medical records under certain circumstances.  If the child is of legal age, but is mentally incompetent, then a Guardian will need to be appointed.
C. WHAT CAN YOU DO IF YOUR LOVED ONE NEVER EXECUTED A POWER OF ATTORNEY AND NOW DOES NOT HAVE THE MENTAL CAPACITY TO SIGN A POWER OF ATTORNEY?​ANSWER:  APPLY FOR A GUARDIANSHIP
If your loved one does not have the mental capacity to sign a Power of Attorney, then you should consider making an application to the Superior Court of New Jersey, Chancery Division, Probate Part to be appointed Guardian of your loved one.  While the thought of getting a court involved in your family’s affairs can be overwhelming and daunting, Pamela M. Snyder, Esq. and the attorneys at the Bathgate, Wegener & Wolf, P.C.  are available to discuss a Guardianship action and provide their assistance during the application process.

  1. Mental Incompetency
    A Guardianship for an adult will only be appointed if the Court declares your loved one mentally incapacitated.  Therefore, if there is any question regarding your loved one’s mental capacity, before you begin to expend thousands of dollars for a Guardianship, you may want to ask his or her regular family physician or neurologist to perform a mini mental status exam.  If your loved one scores well on this exam, then an application for Guardianship may be denied and your loved one may have the mental capacity necessary to sign Power of Attorney and other estate planning documents.  By first obtaining an informal exam of your loved one, you could ultimately save thousands of dollars that could be used towards your loved one’s comfort and health care.

    If there is no doubt that your loved one’s mental capacity is significantly diminished, or if your loved one does not perform well on the mini mental status exam, then before applying to be Guardian of your loved one, you should have your loved one examined by a physician familiar with mental competency exams and a licensed psychiatrist or psychologist.  (New Jersey Court Rule 4:86-2(b)).  The physician and psychiatrist or psychologist must each author a report.  That report must contain the medical professional’s expert opinion regarding whether your loved one is mentally incompetent, whether he or she can govern and handle his or her financial affairs and whether he or she can make decisions regarding her health, medical treatment and issues regarding well-being.  When choosing a physician, psychiatrist or psychologist, it is important to select one familiar with the requirements for Guardianship application.  There will likely be a fee for the examination and report that will not be covered by Medicaid, Medicare or private health insurance.  These fees can be as high as $1,200.00 or more for each medical professional.

  2. Verified Complaint to Have Your Loved One Declared Mentally Incompetent and to Have a Guardian appointed.
    Within thirty (30) days of the medical and competency exam, you must make the application to the Court to be appointed Guardian of your loved one.  (New Jersey Court Rule 4:86-2(b)).  The application must be in the form of an Order to Show Cause and a Verified Complaint.  The current filing fee for the Order to Show Cause and Verified Complaint is $200.00.  This fee is usually paid to the Surrogate of the County in which the alleged incompetent person resides, not the Superior Court of New Jersey.   If the alleged mentally incompetent person cannot be examined before you submit your application to the Court, the Guardianship applicant may request permission from the Court to force an examination of the alleged mentally incompetent and/or grant an extension of time to submit the report.

    When preparing an application to be appointed Guardian of your loved one, the application can seek (a) plenary or Guardianship, (i.e., full or complete uardianship of your loved one), (b) Guardianship of  the person only or (c) Guardianship of property only.  Subject to restrictions imposed by the court, a plenary guardianship would allow the person appointed as Guardian full access to your loved ones health records and finances, and would allow the Guardian to make financial decisions, health care decisions and other decisions regarding for the well-being of the loved one.  This could include authority to do both Medicaid and/or estate planning for the incompetent person.   Guardianship of the person limits the Guardian’s authority to those decisions regarding the Guardian’s health and well-being.  Guardianship of the property limits the Guardian’s power to handling your loved one’s finances, income and assets.

    If you are unsure which type of Guardianship is appropriate in your loved one’s particular situation, you should consult with an attorney experienced in the areas of Guardianship, estate planning, special needs law and/or elder care law.

  3. Factors the Court Will Consider.

When reviewing the Guardianship application, the judge will consider the following factors when making his or her decisions (a) whether to declare your loved one mentally incompetent such that your loved one cannot govern his or her financial affairs and cannot make health decisions on your behalf, and (b) who to name as Guardian or your loved one.  Therefore, these items must be included in your submission to the Court:

    1. ​Name, address, birthdate/age  of alleged mentally incompetent person,
    2. Living situation of alleged mentally incompetent person,
    3. Known Assets of alleged mentally incompetent person,
    4. Known income of alleged mentally incompetent person,
    5. Name of person(s) seeking Guardianship and relationship of that person to the alleged mentally incompetent person,
    6. Name of person(s) having the same or superior degree of relationship to the alleged mentally incompetent person (this may or may not be the same as the names of the next of kin of the alleged mentally incompetent person),
    7. List of government services, i.e., Medicaid, Medicare, DDD benefits, Housing Assistance, Utility Assistance, etc. which the alleged mentally incompetent person is receiving,
    8. Health or mental issues which the alleged incompetent suffers,
    9. Historical examples showing why the alleged mentally incompetent person needs a guardian to handle his or her financial affairs and to make health care decisions on his or her behalf,
    10. Brief synopsis of reports by physician and psychiatrist or psychologist,
    11. Applicant’s willingness to serve as the Guardian.
D. CONCLUSION
If you or a loved one needs assistance managing financial affairs or you need to make medical decisions and access to health care records on behalf of your loved one, both a Power of Attorney and a Guardianship can accomplish that goal.  A Power of Attorney can only be signed and be effective if the person granting the authority is eighteen (18) years of age or older, and has the mental capacity to enter into a contract.  If you or your loved one lacks the necessary mental competency, then it will be necessary to submit an application to the Court to have a Guardian appointed to handle your or your loved one’s financial affairs and matters pertaining to your or your loved one’s health care and well being.  In Part 2 of this three (3) Part series, we will look at what happens after the initial application for a Guardianship is submitted to the Court.If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options at 732-363-0666.

Land Preservation Is A Critical Public Necessity In New Jersey

 
The 2015 Annual Report of the Monmouth Conservation Foundation lists 64 sites it has helped to preserve as open space. William J. Wolf, a partner with the law firm of Bathgate Wegener & Wolf, P.C. represented the owners of 5 of those sites:

 

  1. Langeveld Dutch Bulb Company Tract, Freehold Twp. – Completed 1990, 375 acres;
  2. Hauser Farm, Aberdeen Twp. – Completed 2012, 22 acres;
  3. Sacco Trust, Upper Freehold Twp. – Completed 2012, 55 acres;
  4. Fariello, Aberdeen Twp. – Completed 2014, 33 acres; and
  5. Fariello 2, Aberdeen/Marlboro Twps. – Completed 2015, 30 acres.

​The preservation of open space is a critical public necessity particularly in a densely populated state such as New Jersey where land for open space and recreation is a precious commodity. Because of the current regulatory climate it might not be feasible to develop land that, in the past, would have been converted to homes and various types of commercial activities. Preserving land for recreation and open space constitutes an enterprise that melds those seemingly disparate objectives. Open space preservation and conservation permits the public to benefit by preserving land while simultaneously allowing property owners to monetize their land, and, sometimes, to enjoy a variety of tax benefits and advantages.

Assisting a client who wishes to participate in a land preservation or open space project entails unique skills and experience. Such a project requires a lawyer to have a background in environmental law, regulatory permitting, land development, land valuation and taxation. The land preservation attorneys of BWW have the multi-faceted background and the experience to assist clients who want to participate in a land preservation or open space project.

For many years the land preservation attorneys of BWW have assisted clients in dealing with numerous governmental entities and private organizations to preserve thousands of acres of land as open space. Those preservation projects have included the State of New Jersey, The Port Authority of New York and New Jersey, Monmouth County, Ocean County, New York-New Jersey Baykeeper, Monmouth Conservation Foundation and The Trust for Public Land. Through the efforts of the land preservation attorneys of BWW thousands of acres of land have been preserved as open space or are undergoing consideration for preservation.

Some land preservation, conservation and open space projects involved acquisition by public entities or private foundations. Other matters included easements or revised zoning to permit clustered development balanced by preserved acreage and farmland preservation. As a result of these endeavors, BWW land preservation attorneys have generated millions of dollars for our clients while simultaneously preserving thousands of acres of land as open space.

The land preservation attorneys at BWW have also had involvement with evaluating the potential of linking land preservation, open space and farming with group homes for autistic residents. This unique concept melds the desire to preserve farmland with the dignity associated with independent living.

BWW land preservation attorneys have been representing clients in land preservation, conservation and open space matters throughout the State of New Jersey including clients with land in Monmouth County, Ocean County and elsewhere.

Additional information regarding Mr. Wolf’s representation of clients in land preservation transactions and information regarding the background of the Bathgate Wegener & Wolf land preservation attorneys who have represented clients throughout New Jersey including Ocean County, Monmouth County and Sussex County is available here. 

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years and he was selected to be listed in the Best Attorneys of America. Mr. Wolf has been certified, by the American Institute of Appellate Practice, as an appellate specialist.

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When Losing Family Trust Equals Losing Family Fortune

There is no emotional equivalent to the loss of your parents.  But when you couple the sting of that loss with the realization that you’ve been disinherited from their estate, your sadness can quickly turn to anger, resentment and a sense of betrayal. 

A recent decision from the New Jersey Appellate Division in a case titled In the Matter of the Estate of Kenneth E. Jameson, Deceased, addressed the issue of child disinheritance.  Friction between the now deceased parents, Kenneth and Yvonne, and their daughter, Stacy, began in 1982 when the parents discovered Stacy had become friends with Marc, a Jewish man whom she met in college.  The friction intensified when that friendship progressed to a committed relationship.  Upon learning of the relationship, the parents allegedly forbade Stacy from talking, socializing and having any contact with Marc because he was Jewish.

When Stacy refused to end her relationship with Marc, her parents cut off all financial support they had been giving and advised her that she was no longer welcome in their home.  Thereafter, the parents visited Stacy from time to time, but their conversations during those visits inevitably always turned sour.  According to court documents, during one visit, Kenneth backhanded Stacy hard enough to give her a black eye.  On another visit, Kenneth threatened to physically harm Marc.

In 1987, Kenneth and Yvonne executed separate Last Wills and Testaments.  Article 4 of Kenneth’s Will contained a provision that stated the following:

As an extremely loving and devoted parent, I found that the love, care and concern which I lavished on my daughter was not acknowledged or returned in any way by my daughter.  Instead, she acted toward me with selfishness, manipulation, cruelty, and with abusiveness.  My daughter … blatantly lied to and about me, acted with hatefulness and vindictiveness towards me, and was abusive and physically violent towards me.  [Stacy’s] shameful and hateful behavior towards me and her mother has brought me to my carefully considered decision that [Stacy] is to receive absolutely nothing from my estate.

Stacy and Marc married in 1990.  In response to an invitation to the wedding, Kenneth allegedly told Marc that “they would not attend the wedding because they would never endorse their daughter marrying a Jew.”  Stacy and Marc now have three children.  Kenneth refused to meet them.Kenneth died in 2014.  His Will was admitted to probate and Stacy was provided a copy of it.  Stacy and Marc filed a Complaint against Kenneth’s estate claiming in part that the statements contained in Article 4 of the Will were “totally inaccurate and completely fabricated.”  The Complaint alleged, among other things, that Kenneth’s Will was invalid because it was the product of undue influence, that it was invalid because of religious discrimination, and that the Will was libelous as to Stacy.  In response to the Complaint, Kenneth’s estate filed a motion to dismiss for failure to state a claim pursuant to R. 4:6-2(e).  The trial court heard argument on the motion and entered an order dismissing the Complaint.  Stacy and Marc appealed.

The Appellate Division affirmed the trial court’s dismissal of the Complaint.  Regarding the allegation of undue influence, the Court reiterated that persuasion or suggestions or the possession of influence and the opportunity to exert it, will not suffice to establish undue influence.  The influence must be such that it destroys the testator’s free agency and causes him to dispose of his property not by his own desires, but instead by the will of another, which the testator is unable to overcome.  The factual record did not support such a finding.

Regarding the allegation of religious discrimination, the Court concluded that New Jersey’s Law Against Discrimination does not apply to testamentary dispositions, and that even if the disinheritance was based on an unreasonable discriminatory prejudice, that is still not a ground to invalidate the Will.  The Court, likewise, was not persuaded by Stacy’s argument that Article 4 of the Will was libelous.  Libel occurs when a person makes a defamatory statement that is false and injurious to the reputation of another or exposes another person to hatred, contempt or ridicule.  A cause of action for libel arises upon the “publication” of the defamatory statement.  Stacy argued that admitting the Will to probate was akin to publication.  The Appellate Division disagreed. In the end, Kenneth’s Will was held to be valid and its provisions were enforced.

Bathgate Wegener & Wolf, P.C. has extensive experience in both defending the validity of testamentary documents on behalf of an Estate and challenging them on behalf of disinherited family members or unfairly treated beneficiaries. Please contact Ryan S. Malc, Esq. at 732-363-0666 if you have a question regarding the validity of a Will, Trust or other testamentary document.

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Moving Children Out Of New Jersey By The Custodial Parent

​Are you seeking to move out of New Jersey with the children, but your ex-spouse will not allow the move?  Or, are you seeking to prohibit your ex-spouse from moving out of New Jersey with the children?  In New Jersey, if the non-custodial parent does not consent to the move, the custodial parent must obtain a Court Order allowing the move.

The current prevailing case on this matter when the parties do not have a shared parenting arrangement is Baures v. Lewis, 167 N.J. 91 (2001).   The custodial parent seeking to move must first make a prima facie showing that the move is in good faith and will not be detrimental to the child.  After the moving party has produced sufficient evidence to make this prima facie showing, the non-custodial parent contesting the move has the burden of showing that the move is not in good faith or is detrimental to the child.

The Supreme Court listed the following factors relevant to the analysis of whether the move is in good faith and will not be inimical to the child:

The reasons given for the move;

  • The reasons given for the opposition to the move
  • The past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting or opposing the move
  • Whether the child will receive education, health, and leisure opportunities at least equal to what is available here
  • Any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location
  • Whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child
  • The likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed
  • The effect of the move on extended family relationships here and in the new location
  • If the child is of age, his or her preference
  • Whether the child is entering his or her senior year in high school at which point he or she should generally not be moved without his or her consent until graduation
  • Whether the noncustodial parent has the ability to relocate
  • Any other factor bearing on the child’s interest.
This standard does not apply to true shared residential parenting arrangements.  When the parties have a shared parenting arrangement, the standard that applies, which will be posted in a future blog on this website, is changed circumstances and best interest of the child.

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Talcum Powder and Ovarian Cancer: Juries Award $72 million and $55 million

This June, following a three week trial, a jury determined that Johnson & Johnson’s (“J&J”) talcum powder products caused a Missouri woman’s ovarian cancer and awarded her $55 million.  J&J is appealing the verdict.  In February 2016, another Missouri jury reached a verdict against J&J and awarded $72 million to the family of a woman who died of ovarian cancer.

Closer to home, hundreds of women who used baby powder products containing talcum powder for feminine hygiene and have been diagnosed with ovarian cancer have filed lawsuits in New Jersey.  The plaintiffs in these cases allege fraud, negligence, conspiracy and failure to warn about the cancer risks of talc against J&J, Imerys Talc America (the company that mines the talc and distributes talc to J&J) and Personal Care Products Council (the trade association responsible for representing the interests of the talc industry).

In November 2015, the New Jersey Supreme Court centralized these talc based personal injury claims in Atlantic County so that all cases can be managed by one judge.  These cases center on the connection between perineal use of talcum powder and ovarian cancer in women.

The New Jersey Court website explains that talc: is a mineral mainly consisting of the elements magnesium, silicon and oxygen.  Talcum powder is made from talc.  It absorbs moisture and helps cut down on friction.  It is used in cosmetic products such as baby powder and adult body powders.

​See http://www.judiciary.state.nj.us/mass-tort/talc-powder/index.html)  Talc is the primary ingredient in Johnson’s Baby Powder and is one of the main ingredients of Shower to Shower powder.  These products have been marketed to women for many years as “safe” products for use on all body parts to maintain “soft” and “fresh” skin.

In 1971, a study conducted by Dr. W.J. Henderson found talc particles in ovarian tumors, indicating a possible link between talcum powder and ovarian cancer.  In 1982 Dr. Daniel Cramer conducted the first epidemiological study which demonstrated that women who regularly used talcum powder on their genital areas had a 92% increased risk of ovarian cancer.  Since then, more than 20 additional studies have examined the causal link between talcum powder and ovarian cancer.  All of these studies have shown an increased risk of ovarian cancer among women who use talc in the perineal region.

Even after all of these studies, J&J has not placed warnings on its Baby Powder and Shower to Shower products.  Despite J&J’s knowledge of the years of scientific evidence demonstrating an increased risk of ovarian cancer associated with perineal use of talc, J&J refuses to take any preventative action.  Imerys placed a warning on the wholesale talc supplied to J&J beginning in 2006, but continued to sell the talc to J&J when it knew the intended use was for a product which could be very dangerous when used repeatedly for “personal hygiene”.

If you or someone close to you has developed ovarian cancer and you believe it may be due to personal use of Johnson & Johnson Baby Powder or Shower to Shower talcum powders, you may be entitled to significant compensation.  Please contact our Personal Injury/Products Liability department at 732.363.0666, which is managed by senior partner, Edward B. Kasselman, Esq., for a free consultation.

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