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Sussan & Greenwald
ATTORNEYS AT LAW
www.special-ed-law.com
Guardianship, Wills, Trusts
Once a person attains the age of 18, a parent has no legal authority to make decisions for that individual even though he or she has a disability. That is why in most states, including New Jersey, the law allows a court of competent jurisdiction to appoint a person or persons guardian of an incapacitated person. In New Jersey the standard upon which a judgment of guardianship is based is set forth in the law as follows:
30:4-165.8 Necessary affidavits; "significant chronic functional impairment" defined.
2.The moving papers shall include a verified complaint, an affidavit from a practicing physician or a psychologist licensed pursuant to P.L.1966, c.282 (C.45:14B-1 et seq.), and an affidavit from the chief executive officer, medical director or other officer having administrative control over the program from which the individual is receiving functional or other services provided by the Division of Mental Retardation. The affidavits shall set forth with particularity the facts supporting the affiant's belief that the alleged incapacitated person suffers from a significant chronic functional impairment to such a degree that the person either lacks the cognitive capacity to make decisions for himself or to communicate, in any way, decisions to others. For the purposes of this section, "significant chronic functional impairment" includes, but is not limited to, a lack of comprehension of concepts related to personal care, health care or medical treatment.
It is important that if a guardianship is necessary, it be obtained when your child reaches the age of 18. While the state of NJ has in the past offered to obtain guardianships over incapacitated persons, the waiting list is substantial and delays are common. That is why many parents decide to file for guardianship as soon as practicable. Necessary medical care and other important decisions can then be made by the guardians as needed, without having to waste precious time and money obtaining court orders.
How the transfer of an estate to a person’s heirs after his death occurs depends upon whether or not there is a will. Every adult person of at least the age of eighteen should have a will. This document is a legal declaration of the manner in which the individual desires his property to be distributed.
If there is a family member who has a disability, the need for a will and a separate special needs trust* is even more important. Having funds in the name of a disabled person often times results in governmental benefits being denied or delayed. Such benefit denial could very well include:
Social Security Administration benefits
Medicaid benefits
Medicare benefits
Housing aid
Anti-poverty benefits
Veterans benefits
Developmental Disability/Mental health benefits (such as residential placement, day programs, job coaching, and counseling.)
Leaving financial and other decisions up to relatives is uncertain and risky.
Making a will is an important step in your financial management program. To save your heirs time and money, plan now for the orderly transfer of your property.
Without a will your estate will be divided according to the laws of intestate distribution, the provisions of which are general and inflexible. In all likelihood you would not entirely approve of how the state of New Jersey would divide your estate.
Wills are not do-it-yourself projects. Secure the services of an attorney. The firm of Sussan & Greenwald can assist you in these important considerations.
*Special Needs Trusts offer significant benefits in certain situations. Eligibility for Medicaid and DDD Community Services is based in part on financial requirements, including that an individual’s resources not exceed $2,000 (for a married couple the amount is $3,000). New Jersey Medicaid eligibility regulations allow individuals to exclude assets from the resource limitation only if those funds are in a Special Needs Trust. N.J.A.C. 10: 71-4.11 is intended to allow an individual to have assets to supplement, but not supplant, any benefits or assistance from any federal, State or governmental entity for which the beneficiary is eligible or receiving benefits. A Special Needs Trust contains the assets of a disabled individual and is established and funded prior to the time the individual reaches 65. The trust is established for the sole benefit of the disabled individual by a parent, grandparent, legal guardian or a court. Once established, a Special Needs Trust may not be changed. A Special Needs Trust must contain certain provisions, including but not limited to the following:
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Phone: 732-238-0900 620 Cranbury Road
Suite 212
Fax: 732-238-0970 East Brunswick, N.J. 08816
J. WESLER L. Laracuente L. GAINES
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The information presented herein is intended to be informational, and not legal advice. Obtain competent legal representation for your particular matter. See full disclaimer.