Thursday, December 29, 2016
Wednesday, December 14, 2016
1. It is hereby agreed that _________________ and _________________, who have been domestic partners living together at [specify address and type of premises, apartment or house], shall separate and go their own ways. At this time neither party has the intention of resuming their former domestic partnership arrangement.
2. It is also agreed that each party shall retain complete and total control over his/her separate property, including any furnishings or furniture, that each brought into the relationship. A list of each party’s separate property is attached hereto as Exhibit A.
3. It is further agreed that the items listed in Exhibit B were purchased and are owned jointly by the parties. The parties divided these items in a fair and equitable manner. Each party is entitled to complete and total control over the items listed under their respective names in Exhibit B.
4. The parties agree to dispose of any and all joint debts and other joint obligations in the following manner: [specify each creditor, amount owed, who will pay obligation, indemnification clause].
5. The parties also agree [that both of them are leaving the shared premises] or [that __________________________________ is leaving the shared premises and _____________________________ will remain in the shared premises]. The one staying shall assume all responsibility for said premises from this date forward, except for any common debts incurred by the parties during their relationship. ____________ will take whatever action is required to [remove ______________’s name from the lease] or [refinance the mortgage].
6. The party who is leaving agrees not to reenter the premises without the remaining party’s permission, nor will he/she remove any items from the premises without the other party’s knowledge.
7. [Specify how jointly owned real estate is to be valued, listed, and sold].
8. Neither party shall have any claim against the other party’s business interests, pension or retirement funds, insurance proceeds, rights of inheritance, or any other property not specifically described in this Agreement.
9. Neither party shall have a claim to compensation from the other for services rendered during the time they lived together, for financial support of any kind, or for any other property, assets, or money not described in this Agreement.
10. The parties agree to resolve any dispute arising from this agreement through mediation. The mediator shall be an objective third party who is mutually agreed upon. The mediator’s role shall be to help the parties dissolve their relationship and resolve any differences concerning a division of jointly held property or other issues in a mature and unemotional manner. The parties agree to enter into mediation in good faith. [Parties agree to engage attorneys practicing collaborative law in order to resolve the issues involved in the termination of their relationship. Both parties understand that the collaborative process is engaged in with the specific intent to avoid litigation.]
11. In the event that the parties’ attempt at good-faith mediation is unsuccessful to resolve all issues in dispute, either party may seek to resolve the issues through arbitration through the use of the following protocol:
a. Deliver a written demand for arbitration to the other person and name one arbitrator;
b. The other party shall respond with the name of a second arbitrator within five days from receipt of the notice;
c. The two named arbitrators shall select and name a third arbitrator;
d. The arbitration meeting will take place within seven days following the selection of the third arbitrator;
e. Each party is entitled to retain legal counsel at his/her own expense;
f. Each party may present witnesses and evidence at the arbitration hearing;
g. The arbitrators shall issue their decision within five days after the hearing. Their decision shall set forth their findings and conclusion and shall be in writing. The decision shall be binding upon each party. The parties agree that neither one shall seek relief from the arbitration decision in court.
h. If the person to whom an arbitration demand is made fails to respond within five days, the other party may give an additional five days’ written notice of his/her intent to proceed. If there is still no response, the person initiating the arbitration may proceed with the arbitration before an arbitrator he/she has designated. Any award shall have the same force and effect as if all three arbitrators had settled it.
12. Each party states that he/she entered into this Agreement freely and voluntarily, without fraud, duress, threats, or coercion.
The parties, by signing below, indicate their intention to participate in this Agreement and the provisions set forth herein. Signed this ___ day of ______, 20__.
State of ___________________
County of _________________
_______________________ and ________________________, the Principals, personally appeared before me and executed and acknowledged this Termination of Domestic Partnership/Living Together Arrangement before me this ____ day of _________, 20__.
|Under the law in New Jersey, if a person dies without a Will and without children, their spouse will inherit all assets, even if they are separated from the spouse. In addition, if you have children from a previous marriage, but no Will, your separated spouse will get half your estate. In planning, make sure your assets go to your loved ones or favorite charity. Therefore, you may wish to do the following:|
1) Have an Elder Law attorney prepare a Will to distribute your assets to the people you care the most about. If you already have a Will, prepare a new Will and have the old Will revoked. ( Your estate planning attorney will explain this to you.)
2) Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old power of attorney revoked.
3) Prepare a Living Will prepared
4) Change your beneficiary on assets you may own, such as stocks, bank accounts, IRA, and other financial assets. Change your beneficiary under your own life insurance, whether whole life insurance or term insurance.
5) Contact your employer's human resources and change the beneficiary on life insurance, pension, stock options or other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.
6) Keep your personal papers at a location where family can find them.
7) Have your attorney prepare a prenuptial agreement if you decide to get married.
8) Make sure the trustee for any funds designated for your children is the right trustee.
9) In New Jersey, if you are married and living with your spouse, under certain instances the surviving spouse has a right to elect against the Will The disinherited spouse may like to elect against the Will and try to obtain one third of the estate. Your attorney can explain how you can protect yourself and your children.
10) If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody.
Planning can only be done if someone is competent and/or alive. Make sure your assets can be passed directly to your loved ones.
|TURNING HOUSE OVER TO CHILDREN? Read this first|
(1) Avoid nursing home/ Medicaid getting the house if you have to go into nursing home within 3 years.
(2) Gives responsibility/ up keep to children.
(3) Transfers property to avoid probate.
(4) Children responsible for taxes. _________________
(1) Children/ new owners can kick you out and sell the house.
(2) If children donít pay taxes or sewer charges, town can foreclose. If there is lawsuit against children, lose house or lien. If child dies, who gets the house?
(3) Lose senior citizen and/or veterans benefits, life line, homestead rebate.
(4) If child does not live in house, possible high capital gains tax.
Legal fees and County Clerk costs for attorney to prepare Deed, Affidavit of Title, 1099 substitute tax form, Affidavit of Transfer Tax exemption and filing with County Clerk $300 when Deed is signed in our office.
The living trust is often marketed as a vehicle that allows you to avoid probate upon your death. Probate is the court-supervised process of transferring property at death pursuant to the terms of a will. Many types of property routinely pass outside of the probate process. These include:
* life insurance or retirement plan proceeds which pass to a named beneficiary rather than your estate
* real estate or bank or brokerage accounts held in joint names with right of survivorship
While it is true that the property passing under the terms of a living trust upon the death of the maker of the trust will avoid probate, it should be noted that there may or may not be actual value in that result. Probate laws are different in every state. In some states there are statutorily mandated court or attorney fees while in others those fees may be minimal. Many states have expedited or simplified court proceedings that are efficient and inexpensive for small or simple estates. A properly drafted will in many states can eliminate some of the steps otherwise required in the probate proceedings. In addition much of the delay and red tape customarily associated with probate is a result of the tax laws and tax filing requirements, which can not be eliminated through a living trust and the avoidance of probate.
A living trust can almost never totally avoid probate and a simple will is needed to pour over to the trust any property that has not been transferred to the trust during life.
Property that passes at death through a revocable living trust must first be transferred to the trust, administered by a trustee who may or may not charge fees, and then transferred out of the trust to the beneficiary. These costs and the costs associated with tax filings are often ignored by living trust marketers. There may be other costs as well depending upon the jurisdiction, such as real estate transfer taxes. The comparison of cost between probate and a living trust should be made on a case by case basis.
Trusts to avoid probate and sometimes reduce NJ Estate Tax
Compiled by Kenneth Vercammen
Probate is defined as the procedure by which an Executor proceeds to admit a Will to the jurisdiction of the Surrogate Court, which is proved to be valid or invalid. The term generally includes all matters relating to the administration of estates. There are instances where Surrogate Court monitoring of the estate is desirable. Much has been written about the disadvantages of probate. Following are just a few of the problems associated with probate and why certain people set up Trusts in addition to Wills.
Lack Of Privacy
Documents filed with the Surrogate Court are public information. They are available for inspection to anyone who asks. In large estates, which require an accounting, your probate file will contain a complete list of all assets devised by your Will including business assets. This lack of privacy may lead to problems among family members who now know the plan of distribution and may then contest any provisions with which they disagree. Disinherited relatives and creditors are notified and given time by the Court to contest the Will distribution.
The probate of an estate may take several months to several years to complete. During that time family members may have to apply to the Surrogate Court for an allowance.
Fragmentation - Real Estate
If you own real property in more than one state, probate rules must be followed in each state in which real property is located. The cost and time may be increased.
Revocable Living Trust & Irrevocable Trusts
A Revocable Living Trust is a legal device that allows you to maintain complete control over your assets and avoids Probate. However, a Revocable Trust does not reduce Estate Tax and does not protect your assets from nursing home fees.
Because there is no probate of a Revocable Living Trust, your private financial matters remain private, there are no probate costs, no long delays and loss of control, and no fragmentation of the estate. However, since you still control the trust, it cannot shield assets from Nursing Home, Medicaid or Estate Taxes. To do that, you will need to hire an attorney to prepare an Irrevocable Trust. Fees are minimum $3,000- $5,000 for trusts.
A Revocable Living Trust can easily be structured to automatically create separate Trusts upon the death of either your spouse. Here's how it works. If the wife dies first, the husband has total control of his Trust. Also, for the remainder of his life, he receives all income from her Trust and has the use of the assets whenever needed for living expenses. When he dies, each Trust will claim its tax exemption, and some will go tax-free to their children, or any other beneficiary they designate, without having to go through probate.
A Trust, which cannot be changed or canceled once, it is set up without the consent of the beneficiary. contributions cannot be taken out of the trust by the grantor. Irrevocable trusts offer tax advantages that revocable trusts don't, for example by enabling a person to give money and assets away even before he/she dies. Opposite of revocable trust.
You Maintain Complete Control Over Your Property In a Revocable Living Trust
The principle behind a Revocable Living Trust is simple. When you establish a Living Trust, you transfer all your property into the Trust, and then name yourself as trustee, or you can name you and your spouse as co-trustees of the Trust. The trustees maintain complete control over the property, the same control you had before your property was placed in trust You can buy, sell, borrow, pledge, or collateralize the trust property. You can even discontinue the Trust if you choose. That is why it is called a Revocable Living Trust. We will explain the Irrevocable Trust at the end of the article.
Transferring Property Into the Trust
The transfer of title to property into the Trust is a relatively simple matter when you hire an attorney. Anywhere you have assets, you will get help in transferring your property into the Trust. Your attorney, securities investor, etc., will provide you with assistance needed to transfer your property into your Revocable Living Trust. Your attorney will provide the information and assistance you need to properly fund your Trust.
Probate records are public, your Trust documents are private. A Trust will safeguard the privacy of your family and your private financial matters.
Naming A Trustee
Most people name themselves and their spouse as the initial Trustees of a Revocable Trust. This is usually true unless one spouse is incapacitated to the point that he or she is not able to manage your assets in the same way you do now. However, for an Irrevocable or Medicaid trust, the spouse cannot be the trustee.
Gifts To Religious And Charitable Organizations
Many people wish to give a portion or sometimes all of their assets to a religious or charitable organization in order to carry on the work of those organizations that have given them comfort or peace of mind during their lifetimes. This is easily accomplished with a Revocable Living Trust.
NJ Estate Tax
A New Jersey estate tax return must be filed if the decedent's gross estate plus adjusted taxable gifts exceeds $675,000. It must be filed within nine months of the decedent's death (nine months plus 30 days if the Form 706 method is used).
Current Federal tax laws allow you to leave an unlimited amount to a spouse, tax-free. When your spouse dies, the estate is entitled to a $5,250,000 tax exemption. The first $5,250,000 goes to your beneficiaries free of estate tax. However, the NJ Estate Tax starts at $675,000.
The NJ Estate Tax is in addition to any NJ Inheritance Tax.
Who Must File
A New Jersey estate tax return must be filed if the decedent’s Gross Estate exceeds $675,000. There is a substantial tax that must be paid after the 2nd spouse dies on amounts over $675,000. You can hire an attorney to set up Trusts to try to reduce taxes due. A separate stand alone Trust has a minimum fee for $2,000. We charge a minimum fee of $600 for each Trust within a Will.
Even if your net worth is well below the Federal threshold where the federal estate tax becomes an issue, the New Jersey Estate Tax may still be a problem. The New Jersey Estate Tax affects any person or married couple with net worth over $675,000. There is no exemption for assets you leave to your children; those assets are fully taxed. There is also no exemption for the value of your home and life insurance, so it is easy to hit the $675,000 threshold very quickly.
If you have assets such as bank accounts in joint names, or bank accounts payable upon death, these go directly to the beneficiary. Your Will cannot change who the beneficiary is on a joint account, payable upon death accounts, or other assets such as Life Insurance policies. You would have to directly contact the bank or company where the assets are held and either direct that they change the beneficiary or not list any beneficiary at all other than your Estate. Therefore, if you have $1,200,000 in assets, you can change the ownership and beneficiary of assets so the husband owns $600,000 and the wife owns the other $600,000.
Irrevocable Trust Accounts: Irrevocable trust accounts are deposits held by a trust established by statute or a written trust agreement in which the grantor (the creator of the trust - also referred to as a trustor or settlor) contributes deposits or other property and gives up all power to cancel or change the trust.
An irrevocable trust also may come into existence upon the death of an owner of a revocable trust. The reason is that the owner no longer can revoke or change the terms of the trust. If a trust has multiple owners and one owner passes away, the trust agreement may call for the trust to split into an irrevocable trust and a revocable trust owned by the survivor. Because these two trusts are held under different ownership types, the insurance coverage may be very different, even if the beneficiaries have not changed.
WHAT IS MEDICAID..........
Medicaid is a Federal medical bills assistance program that pays medical bills for eligible, needy persons. It is administered by each state. All payments are made directly to the providers of medical and other health care services. The Medicaid-eligible person does not pay the health care provider for services. The only exception is a patient in a Medicaid-approved nursing facility who may be required to contribute part of his/her income toward the cost of care.
It is important to note Medicaid typically has a lien on assets you own.
Someone can avoid Medicaid and nursing home liens by settling up an Irrevocable Trust and waiting 60 months to apply for Medicaid.
Same-Sex Couples Estate Planning
By Kenneth A. Vercammen
Average Americans work 80,000 hours in a lifetime, or 45 to 55 years. In spite of all the resources and assets people earn, the vast majority of same- sex couples do not take the time to create a Will. National statistics indicate that 80% of Americans die without leaving a Will. There are several reasons for this: fear of death; procrastination; and misinformation (people presume that only the rich or married with children need to have Wills). Whatever the excuse, it is clear that people would benefit from having a Will.
In the absence of a Will or other legal arrangement to distribute property at death, your partner cannot receive any assets and cannot administer your estate. The result can be lengthy delays and other problems. Individuals in gay or lesbian relationships need properly drafted Wills and estate planning documents more than straight persons. The probate laws generally provide if a person dies without a Will, their property goes to family, rather than a partner they had a relationship with for years or decades.
IF YOU HAVE NO WILL: If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate: * State law determines who gets assets, not you * Additional expenses will be incurred and extra work will be required to qualify an administrator * Mandatory bond * Possible additional State inheritance taxes and Federal estate taxes * If you have no spouse or close relatives the State may take your property * The procedure to distribute assets becomes more complicated-and the law makes no exceptions for persons in unusual need or for your own wishes. * It may also cause fights and lawsuits between your partner and your family * When your loved ones are grieving and dealing with death, they shouldn¹t be overwhelmed with disputes over property and Financial concerns. Careful estate planning helps take care of that.
THE FOLLOWING IS A SAMPLE OF A VARIETY OF CLAUSES AND ITEMS WHICH SHOULD BE INCLUDED IN A WILL FOR UNMARRIED PERSON:
1ST: DEBTS AND TAXES 2ND: SPECIFIC BEQUESTS TO PARTNER, CHARITY, ETC. 3RD: DISPOSITION TO PARTNER 4TH: DISPOSITION OF REMAINDER OF ESTATE IF PARTNER IS PREDECEASED 5TH: CREATION OF TRUSTS FOR PARTNER 6TH: DISTRIBUTION TO CHILDREN OR TRUST FOR CHILDREN 7TH: OTHER BENEFICIARIES UNDER 21 8TH: EXECUTORS 9TH: TRUSTEES 10TH: GUARDIANS OF CHILDREN 11TH: NO SURETY OR BOND REQUIRED 12TH: POWERS 13TH: SELF PROVING WILL 14TH: PRINCIPAL AND INCOME 15TH: NO ASSIGNMENT OF BEQUESTS 16TH: GENDER 17TH: CONSTRUCTION OF WILL 18TH: NO CONTEST CLAUSE A Will must not only be prepared within the legal requirements of the New Jersey Statutes but should also be prepared so it leaves no questions regarding your intentions.
WHY PERIODIC REVIEW IS ESSENTIAL Even if you have an existing Will, there are many events that occur which may necessitate changes in your Will. Some of these are: * Domestic Partnership, Marriage, death, birth, divorce or separation affecting people named in your Will * Significant changes in the value of your total assets or in any particular assets which you own * Changes in your relationships * A change in your State domicile * Death or incapacity of a beneficiary, or death, incapacity or change in residence of a named executor, or of one of the witnesses to the execution of the Will if the Will is not self- proving * Annual changes in tax law MAY I CHANGE MY WILL? Yes. A Will may be modified, added to, or entirely changed at any time before your death provided you are mentally and physically competent and desire to change your Will. You should consider revising your Will whenever there are changes in the size of your estate. Beware, if you draw lines through items, erase or write over, or add notations to the original Will, it can be destroyed as a legal document. Either a new Will should be legally prepared or a codicil signed to legally change portions of the Will.
SAVE MONEY Probate in New Jersey is not difficult. Your estate will be subject to probate whether or not you have a Will and in most cases, a Will reduces the cost by eliminating the requirements of a bond. When you meet with your attorney to draft a Will, you may also learn ideas to reduce death taxes and other expenses. Don¹t pinch pennies now to the detriment of your Partner and beneficiaries. We have attempted to briefly explain in this article some of the issues, techniques, and decisions involved in Wills, Estate Planning, and Administration of an Estate. Because the matters covered are complicated and the Federal and New Jersey laws frequently change, this article can only outline some of the many legal issues you should consider.
The cost of a Will depends on the size and the complexity of the estate and the plans of the person who makes the Will.
A properly drawn Simple Will without Trust costs approximately $200.00 to $500.00. It is one of the most important documents you will ever sign, and may be one of the best bargains you will ever have. Also, ascertain if your Will is ³self-proving², which would dispense with having to find the Will¹s witnesses after death.
WHAT IS A WILL? ³A Will is a Legal written document which, after your death, directs how your individually owned property will be distributed, who will be in charge of your property until it is distributed. You should remember that the term ³property² under the law includes "real estate as well as other possessions and rights to receive money or items of value.² Everyone who has at least $3,000 in assets should have a Will. You do not have to be wealthy, married, or near death to do some serious thinking about your Will.
ADMINISTRATION OF AN ESTATE If you are named the executor or executrix, you must visit the County Surrogate to probate the Will. You will need the following items: 1. The Death Certificate 2. The Original Will 3. Names and Addresses of decedents next of kin and will beneficiaries 4. Minimum of $90.00 for Surrogate fees
A state inheritance tax return must be filed and the tax paid on the transfer of real or personal property within eight months after death. OTHER ITEMS OF CONCERN TO BE PREPARED BY YOUR ATTORNEY -Power of Attorney- to allow your partner or another person to administer your assets during your lifetime, either upon disability or now -Living Wills/ Advance Directive- to state your wishes concerning medical care in the event of your serious illness and to allow your partner or another person to make medical decisions.
In the absence of a Power of Attorney or other legal arrangement to distribute property if you become disabled, your partner cannot pay your bills or access your assets. The result can be lengthy delays.
Reasons to have a Power of Attorney What are these powers 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 principals 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 partner the power to handle your affairs if you become ill or disabled.
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 live-in partner, or child can automatically act for them. Unfortunately, this is often wrong, even when joint ownership situations exist. Even under the "new" NJ Domestic Partner Act, you cannot act on behalf of a partner if they become disabled. 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 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 a detailed, expensive legal procedures, called Guardianships or conservatorships, to provide for appointment of a Guardian. These normally require lengthy, formal proceedings and are expensive in court. 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 persons 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. The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following: 1. REAL ESTATE: To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders, and to lease, collect rents, grant, bargain, sell, or borrow and mortgage, and to manage, compromise, settle, and adjust all matters pertaining to real estate.
2. ENDORSEMENT OF NOTES, ETC.: To make, execute, endorse, accept, and deliver any and all bills of exchange, checks, drafts, notes and trade acceptances.
3. PAYMENT OF NOTES, ETC.: To pay all sums of money, at any time, or times, that may hereafter be owing by me upon any bill of exchange, check, draft, note, or trade acceptance, made, executed, endorsed, accepted, and delivered by me, or for me, and in my name, by my Agent.
4. STOCKS, BONDS, AND SECURITIES: To sell any and all shares of stocks, bonds, or other securities now or hereafter, belonging to me, that may be issued by an association, trust, or corporation whether private or public, and to make, execute, and deliver any assignment, or assignments, of any such shares of stock, bonds, or other securities.
5. CONTRACTS, AGREEMENTS, ETC.: To enter into safe deposit boxes, and to make, sign, execute, and deliver, acknowledge, and perform any contract, agreement, writing, or thing that may, in the opinion of my Agent, be necessary or proper to be entered into, made or signed, sealed, executed, delivered, acknowledged or performed.
6. BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS, ETC.: To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit, Money Market Accounts, etc. on my behalf or for my benefit. To make, execute, endorse, accept and deliver any and all checks and drafts, deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan associations and other institutions, execute or release such deeds of trust or other security agreements as may be necessary or proper in the exercise of the rights and powers herein granted; Without in any way being limited by or limiting the foregoing, to conduct banking transactions.
7. TAX RETURNS, INSURANCE AND OTHER DOCUMENTS: To sign all Federal, State, and municipal tax returns, insurance forms and any other documents and to represent me in all matters concerning the foregoing.
You should contact your attorney to have a Power of Attorney Prepared, together with a Will, Living Will and other vital Estate Planning documents.
Same sex couples- Living Will/ Advance Directives Planning Ahead For Your Health Care:
Compiled by Kenneth Vercammen
In the absence of a Living Will or other legal arrangement if you become disabled, your partner generally has no say regarding medical care or life support. Under the Federal HIPAA Law, your partner cannot receive information on your medical status or medical care. Advance directives are very personal documents and you should feel free to develop one which best suits your own needs. All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment. If you have a Living Will, you can designate your partner as a decision maker.
WHY LIVING WILLS Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn. States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS In order to assure respect for patients previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.
HEALTH CARE REPRESENTATIVE The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.
WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVE An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision. Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physicians opinion concerning the nature, cause, extent, and probable duration of the patients incapacity, and shall be made a part of the patients medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.
As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.
But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we cant make them for ourselves? If we cant make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?
Living Will: By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.
After all, if you are seriously ill or injured and cant make decisions for yourself someone will have to decide about your medical care. Doesnt it make sense to
? Have your partner or another person you trust make decisions for you,
? Provide instructions about the treatment you do and do not want, or
? Both appoint a person to make decisions and provide them with instructions.
_____ Rights and Obligations of Domestic Partners Procedural Requirements:
A domestic partnership shall be established when all of the following requirements are met:
1. Both persons have a common residence within the State of New Jersey, or have a common residence in another jurisdiction and at least one of the persons is a member of a New Jersey State-administered retirement system, and both persons are otherwise jointly responsible for each others common welfare as evidenced by joint financial arrangements or joint ownership of real or personal property, which shall be demonstrated by at least one of the following:
a. a joint deed, mortgage agreement or lease; b. a joint bank account; c. designation of one of the persons as a primary beneficiary in the other persons will; d. designation of one of the persons as a primary beneficiary in the other persons life insurance policy or retirement plan; or e. joint ownership of a motor vehicle;
2. Both persons agree to be jointly responsible for each others basic living expenses during the domestic partnership;
3. Neither person is in a marriage recognized by New Jersey law or a member of another domestic partnership;
4. Neither person is related to the other by blood or affinity up to and including the fourth degree of consanguinity;
5. Both persons are of the same sex and therefore unable to enter into a marriage with each other that is recognized by New Jersey law, except that two persons who are each 62 years of age or older and not of the same sex may establish a domestic partnership if they meet the requirements of this section.
6. Both persons have chosen to share each others lives in a committed relationship of mutual caring;
7. Both persons are at least 18 years of age;
8. Both persons file jointly an Affidavit of Domestic Partnership; and
Neither person has been a partner in a domestic partnership that was terminated less than 180 days prior to filing of the current Affidavit of Domestic Partnership, except that this prohibition shall not apply if one of the partners died; and, in all cases in which a person registered a prior domestic partnership, the domestic partnership shall have been terminated in accordance with the provisions shown below under terminating a Domestic Partnership.