Wills, Living Wills, Power Of Attorney, Guardianships, Probate, Estate Litigation
Power of Attorney
A Power of Attorney is a document in which an individual (“principal”) appoints an “agent” to handle financial matters. A power of attorney may provide for broad powers, or may be limited to specific actions that the agent can handle. A General Durable Power of Attorney often covers many type of transactions including for example, banking, financial brokerage accounts, real estate, retirement accounts, filing taxes, making Medicaid applications, etc. There are also Powers of Attorneys that are limited to real estate transactions or banking transactions. A Power of Attorney can be drafted to suit your needs. You do not lose your right to handle your own financial affairs by having a Power of Attorney, and appointing an “agent”. The Power of Attorney just gives your agent the ability to act on your behalf with regard to the transactions designated in your Power of Attorney. Your agent can only exercise his or her duties during your lifetime. The agent’s power terminates upon your death. Since the agent has access to your assets, it is imperative that you chose someone who you trust. It is important to have a Power of Attorney. If you do not have a Power of Attorney and become mentally incapacitated due to injury or illness, you will no longer have the legal capacity to execute a Power of Attorney. Therefore, you will lose the ability to choose an agent. In fact, in this situation, often a family member or friend will have to apply to the Court for a Guardianship to be able to handle the financial and personal affairs of an incapacitated individual. A Guardianship action can often be avoided by having a valid Power of Attorney.
A Guardianship is a legal action, which may result in the Court making a finding of legal incapacity and appointing a guardian to handle the financial and personal/medical affairs of an individual. A Guardianship action can often be avoided by having a valid Power of Attorney. Since a guardianship is a legal action requiring the preparation of an Order to Show Cause, Verified Complaint and various Certifications, and a Court hearing, it is more costly than having a Power of Attorney prepared. Guardianship actions may be uncontested or contested. Sometimes there is an issue as to whether an individual is incapacitated and in need of a guardian. Sometimes there is a dispute as to who is the appropriate person to serve as a guardian.
The purpose of a Will is to set forth who will inherit your property; this includes, money, personal property, and real estate. It is important to have a Will, because if you die without a Will, your possessions are distributed pursuant to the New Jersey Intestate Succession statute. This statute lays out how property is distributed to heirs, when there is no Will. In order to make sure that your property is distributed the way you want it to be done, it is necessary to have a Will. Additionally, in the Will, an executor is appointed to carry out the wishes that the “testator” (the person who executes the Will) expresses in the Will. The Executor is responsible for paying the debts of the Deceased out of the estate and distributing the probate assets to the beneficiaries. The Executor will have access to the money in the estate. Therefore, the person chosen to be the Executor should be someone who is trustworthy. The Executor can only exercise his or her duties after an individual has died.
Living Will and Durable Healthcare Power of Attorney
The purpose of a Living Will and Durable Healthcare Power of Attorney is (1) to appoint a Healthcare Representative to make treatment decisions on your behalf if you are unable to do so for yourself, and (2) to set forth your wishes regarding your healthcare for your Healthcare Representative to follow in the event that you are not able to participate in making decisions about your treatment. If you do not have a Living Will and Durable Healthcare Power of Attorney in place, and are in a position where you are unable to consent to treatment or the withholding of treatment, a family member or friend may have to file a guardianship action in order to have the authority to make medical decisions on your behalf.
Generally, Wills are probated at the Surrogate’s Office in the County of the Deceased’s residence at the time of death. Upon the Will being probated, the Executor is granted documentation authorizing him/her to administer the estate. If there is no Will, an application can be made to be appointed Administrator. Upon appointment the Administrator, he/she is granted documentation authorizing him/her to administer the estate.
The death of a loved one can be upsetting and traumatic. It can become even more distressing when family and friends argue over the disposition of the deceased’s property. These arguments may be based upon various reasons such as (1) accusations that the Deceased did not execute a Will, Power of Attorney, life insurance documents, beneficiary designations documents or other documents knowingly and voluntarily, but were the product of undue influence; (2) accusations that the Deceased was either too ill or under the influence of medication, which would render the Deceased without legal capacity to execute legal documents, such as a Will, Power of Attorney, life insurance documents, beneficiary designations documents or other documents; (3) accusations that an individual wrongfully dissipated the Deceased’s assets either before or after his/her death; (4) disagreements as to who should administer an estate. Under these circumstances, an action may be filed in Court to resolve these issues.