Compiled
by Kenneth Vercammen, Past Vice-Chair, ABA Elder Law Committee, GP Section
If
a person has been diagnosed with Multiple Sclerosis (MS), it is important to
immediately conduct Estate Planning with the assistance of an attorney.
Many
Americans are thought to have Multiple Sclerosis - yet half of them remain
undiagnosed.
It's
all too easy to mistake many early Multiple Sclerosis symptoms for natural
signs of aging. Symptoms can also vary widely among individuals.
Recognizing
and treating Multiple Sclerosis early is vital. Early diagnosis of Multiple
Sclerosis is important because that is when the most can be done to slow the
progression of symptoms. Early treatment can have a significant effect on
maintaining a patient's current level of ability.
Find
help for yourself. Many people concerned about Multiple Sclerosis discover that
they need additional answers. Your doctor is your primary source of information
about Multiple Sclerosis.
If
a person has been diagnosed with Multiple Sclerosis, and is still mentally
competent, a formal Power of Attorney, Will and Living Will should be prepared
immediately. Generally, many attorneys will require: 1. A note from the Doctor
indicating the person is competent to sign a Power of Attorney. [and Will if
the Will has not yet been prepared] 2. The client to specifically advise the
attorney they want to appoint the specific person to handle their financial
affairs. [The attorney cannot rely on a family member saying what the client/
patient wants]
Prior
to an individual being unable to manage his or her life as a result of a mental
or physical disability, legal planning should be done. If a legally prepared
Power of Attorney was signed, a trusted family member, friend or professional
can legally act on that person's affairs. If a Power of Attorney was not
signed, an attorney may be retained to file a formal complaint and other legal
pleadings in the Superior Court to permit the trusted family member, friend or
professional to be able to handle financial affairs.
What
is a Power of Attorney?
A
Power of Attorney is a written document in which a competent adult individual
(the "principal") appoints another competent adult individual (the
"attorney-in-fact") to act on the principal's behalf. In general, an
attorney-in-fact may perform any legal function or task which the principal has
a legal right to do for him/herself. Therefore, the doctor often must determine
if the recently diagnosed Multiple Sclerosis patient is competent to sign a
Power of Attorney.
The
term "durable" in reference to a Power of Attorney means that the
power remains in force for the lifetime of the principal, even if he/she
becomes mentally incapacitated. A principal may cancel a Power of Attorney at
any time for any reason. Powers granted on a Power of Attorney document can be
very broad or very narrow in accordance with the needs of the principal.
Why
is Power of Attorney so important?
Every
adult has day-to-day affairs to manage, such as paying the bills. Many people
are under the impression that, in the event of catastrophic illness or injury,
a spouse or child can automatically act for them. Unfortunately, this is often
wrong, even when joint ownership situations exist.
The
lack of properly prepared and executed Power of Attorney can cause extreme
difficulties when an individual is stricken with severe illness or injury
rendering him/her unable to make decisions or manage financial and medical
affairs. New Jersey has legal procedures, guardianships or conservatorships, to
provide for appointment of a Guardian. These require formal proceedings and are
expensive in court. This means requirement of lawyers to prepare and file the
necessary papers and doctors to provide medical certifications or testimony
regarding the mental incapacity of the subject of the action. The procedures
also require the involvement of a temporary guardian to investigate, even
intercede, in surrogate proceedings. This can be slow, costly, and very
frustrating.
Advance
preparation of the Power of Attorney can avoid the inconvenience and expense of
legal Guardianship proceedings. This needs to be done while the principal is
competent, alert and aware of the consequences of his/her decision. Once a
serious problem occurs, it is too late.
Powers
of Attorney are generally given by one person to another so that if the grantor
of the power becomes ill or incapacitated, the Power of Attorney will permit
the holder of it to pay the grantor's bills and to handle the grantor's affairs
during the inability of the grantor to do the same.
Without
a legal Power of Attorney or court ordered guardianship, even a spouse does not
have the legal authority to sign their spouse's signature. If a valid Power of
Attorney is not legally prepared, signed and acknowledged in front of an
attorney or notary, it is invalid. Without a Power of Attorney, a Guardianship
Order and Judgment must be obtained from the Superior Court to permit complete
legal decision making.
According
to Disability Law, A Legal Primer published by the New Jersey State Bar
Association, "A guardian is a person appointed by a court to make
financial and personal decisions for a person proven to be a legally
incompetent/ incapacitated person." p11
1.
When is a guardian needed?
A
guardian is needed when an individual can not manage his or her life as a
result of a mental or physical disability, alcohol or drug addiction. The
person for whom a guardian is appointed is called a "ward".
Disability Law at p11
Legislation
(P.L. 1997, c 379) changed the designation of "mental incompetent" to
"incapacitated person" in all laws, rules, regulations and documents.
New Jersey Lawyer March 23, 1998
2.
What rights does a incompetent/ incapacitated person lose?
Unless
a Court orders otherwise, a ward/ incompetent/ incapacitated person does not
have the right to decide where to live, spend money, use property, appear in
Court or undergo medical treatment without the approval of his or her guardian.
An unmarried incompetent/ incapacitated person also loses the right to marry.
3.
How does somebody become the guardian of another?
Guardians
are appointed by Courts after the person in need of guardianship is proven
incompetent. Guardianship actions can be brought under the general incompetency
statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people
who receive services from the State Division of Developmental Disabilities.
N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent/
incapacitated person or are parents of an unmarried incompetent/ incapacitated
person can choose who will become the guardian after the guardians die and
include a clause designating their successor in their Wills. Disability Laws
p12. Under the general incompetency statute, a Complaint requesting
Guardianship must be filed in the Superior Court, plus a detailed Affidavit by
the person requesting to be Guardian detailing the assets of the incompetent/
incapacitated person plus reasons why the incompetent/ incapacitated person is
no longer able to manage their affairs. Affidavits of two doctors are also
needed. The Court will appoint a temporary attorney to interview the
incompetent/ incapacitated person and prepare a report to the Court. The court
costs and legal fees often exceeds $4,000.
4.
Who can be a guardian?
Generally,
a close relative or a person with a close relationship to the proposed
incompetent/ incapacitated person who will act to protect the incompetent/
incapacitated person's best interests can be guardian. When a close friend or
relative is not available, the Court may appoint the Public Guardian (for
persons over 60) or an Attorney to serve as guardian.
5.
What are the rights of the proposed incompetent/ incapacitated person prior to
hearing?
The
proposed incompetent/ incapacitated person is entitled to receive advance
notice of the guardianship hearing, to be represented by a lawyer and to
present a defense at the hearing.
6.
Is court approval required to sell real estate if someone is declared
incompetent/ incapacitated?
Yes.
Your attorney can discuss transferring certain assets to qualify for Medicaid.
For
more information, go to http://njwillsprobatelaw.com/estate_planning_for_multiple_sclerosis_patients.html?id=390&a=
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