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Kenneth Vercammen & Associates, P.C. 2053 Woodbridge Avenue - Edison, NJ 08817


Thursday, January 21, 2016

Power of Attorney in case of physical or mental disability Middlesex County East Brunswick Edison Highland Park Jamesburg Metuchen Middlesex Boro Milltown Monroe New Brunswick North Brunswick Old Bridge Perth Amboy Piscataway Plainsboro South Brunswick South Plainfield South River Spotswood Woodbridge Carteret Cranbury Dunellen

Power of Attorney- What to explain and discuss with the client


By Kenneth Vercammen, Esq of Edison, NJ

    The ABA GP Solo Division  published Ken Vercammen’s 3rd book “Wills and Estate Administration”. This is a chapter of the book. The book is available at
     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. You may wish to sign a Power of Attorney giving your spouse, children or partner the power to handle your affairs if you become ill or disabled.
       An important part of lifetime planning is the Power of Attorney. Valid in all states, these documents give one or more persons the power to act on your behalf. The power may be limited to a particular activity (e.g., closing the sale of your home) or general in its application, empowering one or more persons to act on your behalf in a variety of situations. It may take effective immediately or only upon the occurrence of a future event (e.g., a determination that you are unable to act for yourself). The latter are "springing" Powers of Attorney. It may give temporary or continuous, permanent authority to act on your behalf. A power of attorney may be revoked, but most states require written notice of revocation to the person named to act for you. See

      In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your spouse, family or partner cannot pay your bills or handle your assets.  The result can be lengthy delays.

      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.  The Power of Attorney can be effective immediately upon signing or only upon disability. 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. A Durable power of attorney stays in effect even if someone becomes disabled.

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. A Power of Attorney allows your partner or another person to administer your assets during your lifetime, either upon disability or now.

      The lack of a 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.  States have a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian.  These normally require lengthy, formal proceedings in court and are expensive. This means involvement of lawyers to prepare and file the necessary papers and doctors to provide medical testimony regarding the mental incapacity of the subject of the action.  The procedures also require the involvement of a temporary guardian to investigate, even intercede, in surrogate proceedings. This can be slow, costly, and very frustrating. In addition, the domestic partner can be challenged in a guardianship by the incapacitated person's family members.
     
      Advance preparation of the Power of Attorney could avoid the inconvenience and expense of 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 usually too late.
     Counsel clients against using cheap online forms. Banks often will not honor the forms unless they have reference to the State statute. For example, in NJ we advise Do not use a form purchased online.
    A Power of Attorney should contain reference to the applicable state statute requiring banks to honor the Power of Attorney. Section 2 of P.L. 1991, c. 95 (c. 46:2B-11). 
     
With a valid Power of Attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the Power of Attorney be presented before your agents authority to sign the title will be honored. Similarly, an agent who signs documents to buy or sell real property on your behalf must present the Power of Attorney to the title company. The same applies to sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the Power of Attorney when signing checks for you.
Why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a Power of Attorney. Another important reason to use Powers of Attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary (e.g., due to travel, accident, or illness) or it may be permanent.
If you do not have a Power of Attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. If a court proceeding, sometimes known as intervention, is needed, than you may not have the ability to choose the person who will act for you. With A Power of Attorney, you choose who will act and define their authority and its limits, if any. Guardianships and other court proceedings are very expensive and time consuming.
      There are helpful clauses and definitions in the Uniform Probate Code ARTICLE 5B UNIFORM POWER OF ATTORNEY ACT (2006) As of 2015 the following states have adopted all or part: Alaska, Arizona, Colorado, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, U.S. Virgin Islands, Utah

        Gift giving clause in Power of Attorney
      To make gifts to facilitate my qualifying for the receipt of government benefits for my long-term health care and nursing home care needs (e.g., old age pension and Medicaid benefits). Any gifts made pursuant to this paragraph are to be made unconditionally as determined in the sole discretion of my attorney-in-fact. Such gifts shall be irrevocable. My attorney-in-fact is authorized to make said gifts so long as my long-term care is reasonably provided for by my assets subject to this Power, or otherwise during the time period I would be disqualified from receiving long-term care and/or medical assistance under the State Medicaid program. Any gifts may be made outright or in trust and may include both real and personal property.
Source: Estate Planning for Same-sex Couples  ABA
 By Joan M. Burda

Kenneth A. Vercammen is a trial attorney in Edison, NJ. He is co-chair of the ABA Probate & Estate Planning Law Committee of the American Bar Association Solo Small Firm Division.  The ABA is publishing his book “Wills and Estate Administration, available at http://shop.americanbar.org/.”
He is a speaker for the NJ State Bar Association at the annual Nuts & Bolts of Elder Law & Estate Administration program.  
He was Editor of the ABA Estate Planning Probate Committee Newsletter. Mr. Vercammen has published over 150 legal articles in national and New Jersey publications on litigation, elder law, probate and trial topics. He is a highly regarded lecturer on litigation and probate law 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 established the NJlaws website www.njlaws.com which includes many articles on Estate Planning, Probate and Wills.
KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
 (Fax)    732-572-0030
www.njlaws.com
http://www.njwillsprobatelaw.com


LANDLORDS - EVICTING DELINQUENT TENANTS FOR NON-PAYMENT OF RENT Middlesex County East Brunswick Edison Highland Park Jamesburg Metuchen Middlesex Boro Milltown Monroe New Brunswick North Brunswick Old Bridge Perth Amboy Piscataway Plainsboro South Brunswick South Plainfield South River Spotswood Woodbridge Carteret Cranbury Dunellen

 LANDLORDS - EVICTING TENANTS FOR NON-PAYMENT OF RENT
                         By Kenneth A. Vercammen  Esq
        
         This article will briefly explore certain remedies and recommendations to landlords. Unlike big apartment complexes, many landlords in New Jersey do not have full time management companies handling the collection of rent. Yet all landlords should handle their payments as a business, just as big corporate landlords.
      
WRITTEN LEASE
         A  written lease is recommended for all rentals even for a month to month. Your lease should specifically require that the tenant pay the landlord's attorney's fees if they fail to pay rent or breach the lease in any way. If a written lease does not provide for attorneys fees, the court cannot award attorneys fees. In addition, your lease should provide in writing for re-renting cost if the tenant breaches the lease. Many leases also provide for late fees.

NON-PAYMENT OF RENT
         If your tenant fails to pay and you want to evict the tenant, a Tenancy Summons plus an Eviction Complaint must be filed in the Superior Court's Special Civil Part, Tenancy Division.  The court-filing fee is was increased to $50 plus mileage. Different attorneys charge different fees depending upon the amount of work to be done. Your attorney can prepare the mandatory complaint and summons. Our minimum fee is $1,500, up front. Our consult fee is minimum $150.
         The Court Constable is required to personally serve the tenant with a copy of the complaint. The court clerk will fill out the date and time for hearing on the summons, which also will be served on the tenant.
         You and your attorney should appear on the date for hearing. If the tenant appears, parties sometimes work out a payment plan for rent with a stipulation of settlement and stay of eviction. The landlord and tenant usually agree if all rent is not paid according to the schedule, the court is directed to issue a warrant for possession.

FAILURE OF TENANT TO APPEAR
         If the tenant fails to appear by the second call, you can pay an additional fee for a warrant of removal. This is obtained at the Special Civil Part Clerk, Tenancy Section Office. After waiting three days, the constable is given the warrant to serve at the tenant's property. If the tenant still fails to move, arrangements can be made with the constable and locksmith to physically remove the tenants and change locks.


REGISTRATION OF PROPERTY
         Most residential units most be registered with the town. It is a good idea to bring proof of registration when you go to court.
Eviction Bill/ Services  
  1. Prepare Complaint Landlord/Tenant. Add amount unpaid, late fees and costs
  2. Fill out the form Tenancy Summons.
Prepare Letter to court to File Complaint

Tenancy Division
PO Box 1146
New Brunswick, NJ 08903-1146

Hand deliver Tenancy Eviction complaint to courthouse at 56 Paterson St., New Brunswick, NJ 08901.
Review Complaint, summons Court hearing notice and supporting documents,
Travel to Middlesex County Courthouse
Spoke with client
Attendance at Judge mandatory opening statement, attendance at calendar call/hearing
Meeting with client
Minimum legal fee Eviction Bill/ Services  
  1. Prepare Complaint Landlord/Tenant. Add amount unpaid, late fees and costs
  2. Fill out the form Tenancy Summons.
Prepare Letter to court to File Complaint

Tenancy Division
PO Box 1146
New Brunswick, NJ 08903-1146

Hand deliver Tenancy Eviction complaint to courthouse at 56 Paterson St., New Brunswick, NJ 08901.
Review Complaint, summons Court hearing notice and supporting documents,
Travel to Middlesex County Courthouse
Spoke with client
Attendance at Judge mandatory opening statement, attendance at calendar call/hearing
Meeting with client
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
www.njlaws.com

Landlord tenant eviction questionnaire - CLIENT INFORMATION SHEET

Please fill out completely
(Please Print)

NAME __________________________________________________________
      
ADDRESS _______________________________________________________

CITY _____________________________ STATE _______ ZIP _____________

CELL-PHONE ___________________________________ (Area Code Needed)
      
PHONE-DAY __________________________ NIGHT ______________________

E-MAIL ADDRESS _________________________________________________

TYPE OF MATTER: ________________________________________________


REFERRED BY: ___________________________________________________
If referred by a person, is this a client or attorney?  If you heard about the law office on the Internet, which search engine?  What search terms did you use?

TODAY’S DATE: __________________________________________________

DESCRIPTION OF MATTER:

______________________________________


______________________________________

______________________________________
­­­­­­
QUESTIONS TO ASK ATTORNEY: ______________________________________


______________________________________________________________


Eviction Details

1. Name of Plaintiff(s)/Landlord(s): ___________________

Name of all Defendant(s)/Tenant(s): ____________________ 

____________________

____________________

___________________


2. Address of Rental Premises: ____________________

Tenant’s Phone No.: ____________________

3. The tenant(s) now reside(s) in and has (have) been in possession of these premises since

____________________________
(mm/dd/yyyy)

under (check one)  _______ written or  _______ oral agreement


 4.  __ Check here if the tenancy is subsidized pursuant to either a federal or state program or the apartment is public housing.

5. Amount due.  The (check one) (x) monthly or ( ) weekly amount that must be paid by the tenants(s) for these premises is $___________
  payable on the _______ day of each (__) month or ( __) week in advance.

COMPLETE PARAGRAPHS 6A, 6B AND 6C IF COMPLAINT IS FOR NON-PAYMENT OF RENT

6A.  There is due, unpaid and owing from tenant(s) to landlord   for rent as follows:

$______  base rent  for ___________ month

$___  late charges, under paragraph ____, Line ___________ of written                              lease   [no late fees unless set forth in written lease]

$______  base rent  for ___________ month

$______  base rent  for ___________ month


$ _________ attorney's fees, as specifically provided for in the lease under paragraph ____, Line ___________  [no attorney  fees unless set forth in written lease]

       ________ other (specify ___________), if permitted by federal law, local law and the lease.
         $______  court costs (fees for filing and serving the complaint)

Total due as of this notice is $______________________


Amount due after first day of the next month $___________________


IF THE COMPLAINT IS FOR OTHER THAN OR IN ADDITION TO NON-PAYMENT OF RENT.  ATTACH ALL NOTICES TO CEASE AND NOTICES TO QUIT/DEMANDS FOR POSSESSION.
Landlord seeks a judgment for possession for the additional or alternative reason(s) stated in the notices 

attached to this complaint.  STATE REASONS  under the Lease or Violations of NJ Eviction Law





What questions do you have?






FILE A SPECIAL CIVIL PART COMPLAINT FOR MONEY OWED
         Most eviction complaints are evictions based only on non-payment of rent.  The New Jersey Anti-Eviction Act places substantial notice requirement on landlords who wish to evict tenants for reasons other than non-payment of rent. If the tenant is able to pay the rent in full prior to warrant of possession, the court will let the tenant remain in the property.

HOW TO GET YOUR MONEY
         The Tenancy Judge will not require the tenant to pay attorneys fees, damages and other costs. This court can only evict tenants, or permit tenants to remain if they paid the rent in full. To protect yourself and get all money due, file a money owed complaint in the Special Civil Part. The filing fee is less than $50.

 KENNETH  VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817

  (Phone) 732-572-0500