E342 June 30

1. Passengers can be ordered out if belief of danger. State v. Mai __ NJ ___ (2010) (A­98­09) The officers presented sufficient facts in the totality of the circumstances that would create in a police officer a heightened awareness of danger that would war rant an objectively reasonable officer in securing the scene in a more effective manner by ordering the passenger to exit the car. Those same circumstances authorize a police officer to open a vehicle door as part of ordering a passenger to exit. Thus, the seizure of the weapon was proper under the plain view doctrine, and the seizure of the holster and loaded magazine from the passenger was lawful as the fruits of a proper search incident to an arrest.

2. UNDERSTANDING YOUR DUTIES AND RESPONSIBILITIES AS A GUARDIAN

By Ethan J. Ordog, Esquire

As the probate judge renders his or her decision regarding a finding of incapacity and the appointment of an appropriate guardian, many individuals, specifically those who have been entrusted with such an appointment, begin to contemplate the responsibility which is being conferred upon them. Typically, a determination to pursue guardianship is prompted by a realization, usually by one’s spouse, children or next of kin, that a protective arrangement is necessary as an individual has lost the capacity and no one can lawfully act for him or her duty absence of a living will and power of attorney. Most frequently, guardianships are established on behalf of older adults who have lost mental capacity due to senile dementia, major stroke, severe mental illness, among other conditions which render them unable to manage their affairs.

In order to become a guardian of the person and/or estate of an alleged incapacitated individual, a petition must be filed with the Superior Court, which is located in the county where the mentally incapacitated person is domiciled. The pleadings do so if a guardianship were filed with the Surrogate’s office and thereafter heard before the Judge who presides over the probate part. Specifically, the petitioner must file an Order for hearing, verified complaint and affidavit as to the alleged incapacitated person’s estate. The complaint itself must contain a variety of information including the health and limitations of the alleged incapacitated individual, as well as an overview of the circumstances which require the establishment of a guardianship. Additionally, such a filing requires the inclusion of two certifications from physicians have examined the alleged incapacitated individual, no longer than 30 days prior to the filing of a complaint.

Moreover, the petitioner is also required to submit an affidavit as to the estate of the alleged incapacitated individual, thereby detailing the income, assets and liabilities.

Upon receipt of such documentation, the judge responsible for hearing such matters shall establish a hearing date and appoint an independent attorney to represent the interests of the alleged incapacitated individual. The Court­appointed attorney visits with the legitimate individual to determine whether or not he or she is indeed

incapacitated and to determine any reasonable wishes that his or her client would like to be articulated with respect to the guardianship. Typically, prior to the filing of a report by the court­appointed attorney, he or she shall meet with other family members and interested parties. Furthermore, ultimately a hearing, which may or may not require the appearances of counsel and/or the proposed guardian(s), is held with a corresponding judgment executed by the local probate judge. After a Guardianship has been granted, the proposed guardian is required to execute qualification documentation with the surrogates office, with letters of guardianship then issued to the guardian. In most cases the guardian will need to acquire a surety bond which insures against potential mismanagement or abuse of the incapacitated person’s assets.

In fulfilling the duties of a guardian, it must be recognized that the guardian function is in the best interests of the ward. Following such appointment, a guardian is typically required to file an inventory of the incapacitated person’s assets, as well as an annual report, submitted yearly on the anniversary of the establishment of such guardianship, with the Surrogate’s office. As guardian of the person, the essential responsibilities include determining where the incapacitated individual shall reside and how personal and medical care, meals, transportation, socialization and recreation shall be provided. As guardian of the property, which shall typically entail both real and personal property, it is the responsibility of the guardian to determine the extent of such assets and take control. Fundamentally, consistent with those assets attributable to the incapacitated person, as well as monthly income, by way of social security, pension and/or other monthly distributions, it is necessary to establish a budget and ensure that bills and other related expenses are paid.

While it is often the intention for an incapacitated individual to remain in their residence as long as they are physically able, a guardian must consider and determine the feasibility of the living arrangement, based upon physical, mental or financial considerations. In determining an appropriate alternative, it is essential for the guardian to determine what benefits or possible assistance is available to help cover the costs of such placement, if necessary. Moreover, especially following the placement of an incapacitated person in a long­term­care facility, it remains the guardian’s responsibility to insure that the incapacitated person’s needs are met in that he or she is receiving the appropriate care. Systemically, as guardian, authority has been conferred to make decisions concerning the incapacitated person’s medical treatment, although some simple decisions may be made by the incapacitated person. It is important to make decisions upon consideration of medical device as well as previously stated wishes of the incapacitated person, specifically pertaining to end of life decision­making.

Additionally, it is important to ensure the health care providers are provided with health insurance information including but not limited to Medicare, Medicaid, long­term care insurance and other private policy coverage.

In serving as guardian of the incapacitated person’s property, both real and personal, the guardian must identify such assets which may include bank accounts, stocks, bonds, life insurance policies, real estate, business interests, vehicles, as well as monthly income and/or payments from the government, pension plans, insurance

companies and other sources. Typically, it is necessary to open a guardianship account for the deposit of such funds, as well as take control and be added to existing accounts.

Additionally, it is imperative to maintain records of expenditures, with a corresponding description, so that you will have such information to prepare any accountings which might be required. Further, the law requires that those assets attributable to the incapacitated person remain separate from those of the guardian. If the incapacitated person still owns the vehicle the guardian should obtain the certificate of ownership to ensure that no unauthorized person attempts to use the vehicle. Regardless, while remains an asset, it is important to ensure that the registration, inspection and auto insurance are current. If the vehicle is no longer necessary, the guardian may consider selling it, rather than continuing to expend those funds necessary for maintaining such possession. A guardian should be aware that if the incapacitated person becomes eligible for such programs as Medicaid, SSI or municipal welfare, a review we may determine that all assets were expended for the benefit of the incapacitated person.

Therefore it is important to maintain accurate and up­to­date records, including receipts, on the expenditure of such funds and/or the disposition of any assets.

As a guardian of an incapacitated person’s property, such individual is entitled to commissions on income, pursuant to N.J.S.A. 3B: 18­24, and on corpus, pursuant to N.J.S.A. 3B: 18­25. Such compensation is taxable income to you as received.

Additionally, a guardian may be reimbursed for any other reasonable expenditure made on behalf of the incapacitated person, assuming assets are available. You should always use reasonable judgment as a guardian and seek to ensure the ongoing financial and physical threat well­being of the incapacitated person.

Source: Begley, Begley & Bookbinder, P.C., 509 South Lenola, Building 7, Moorestown, NJ 08057800­533­7227 The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co­ author with Kenneth Vercammen, and Martin Spigner of the 400 plus page book on Elder Law. Should you or a family member require assistance with respect to obtaining guardianship of an individual, please contact Begley, Begley & Bookbinder at 800­533­ 7227.

3. Belmar Five Mile Run ­ New Team Competition. Need team members Saturday, July 10, 2010 8:30 am Kenneth Vercammen is putting together 3 teams of both competitive and non­ competitive runners. If you can finish 5 miles in less than 1 hour, you can be on our teams of fun.

Our winning teams in 2009 won free beer tickets. individual Application online at http://www.belmar5.com/belmar.pdf or go to online at http://Active.com The name of Ken's teams are US Olympic Development 1, Olympic Development 2, and US Olympic Development 3 [ just trying to finish] . We will have runners from several running clubs, including RVRR. JSRC, CJRR & Jersey Shore Tri Club and Rumson Hash.

You do not need to be a member of USATF or any club to be on a team. We would like 30 people of different abilities.

Post Race Activities ­ Enjoy a complimentary massage and stop by the sponsor and merchant tables in Silver Lake Park, for sampling and giveaways.

Team awards, music and Beach party, after the race at Bar Anticipation.

Bring your Belmar Five Mug ­ mug discounts all day after the Race!

Bar Anticipation ­ 703 16th Avenue, Lake Como (formerly South Belmar) If you have or will enter the Belmar 5, email Ken V at KenV@njlaws.com More details on Belmar 5 at http://www.belmar5.com/

Kenneth Vercammen Law Office 25th Anniversary Party "Celebrating 25 years of providing excellent service to clients and the community" 1985­2010 Friday, July 30, 2010 4­7 PM Happy Hour, Open House, Client & Community Appreciation Social. Open to the public Food, Refreshments, T­ shirts and special gifts

The Law office is located at 2053 Woodbridge Avenue, Edison, NJ 08817 near the Nixon Post Office, approximately 1/2 mile from Route 1/ Wick Plaza, and 1 mile from Middlesex County College. There is 50 parking spaces nearby on Russell Ave. and Lillian St. around the corner from Kim’s Kafe, on Woodbridge Ave. near the Green Derby Tavern, and across the street on School House Lane.

Visit our website at www.njlaws.com for Directions and other details or call and we will fax directions or email at KenV@njlaws.com Kenneth Vercammen, Esq. at (732) 572­0500(Law office) Fax form to 732­572­0030 or email kenvnjlaws@verizon.net ­Yes, We will be attending the party Name: _____________________________ email: _____________________________