Senior citizens and their immediate families often experience stress and challenges related to the health and well-being of the senior citizen; as well as financial issues related to the wealth (or lack thereof) of the senior citizen.

Traditionally, disputes often were resolved through lawsuits and legal proceedings – which exasperated the family problems even further; sometimes with lifelong consequences.

Alternative solutions may be explored through Mediation — as may be applicable to your situation, explore the opportunities available through Family Conflict Mediation; Estate Planning Mediation; Estate Distribution Mediation and Family Business Growth & Transition Mediation.

Also, read: Guide To Overcoming Legal and Psychological Barriers to Settlement in Elder Mediation, published in the Law Office of Donald D. Vanarelli Blog; and Oh, Brother! With Parents Aging, Squabbling Siblings Turn to Elder Mediation, published by AARP.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Mediation related to Elder-Care; Senior-Citizen Issues; Family Business Transitions; Inheritances and Estates originally appeared on NJ Family Issues on November 11, 2010.

• Preserving the Primary Residence: The Minefield of Real Estate Transactions in Elder Law Planning
  by Linda S. Ershow-Levenberg
• Client Capacity — Assessment and Advocacy
  by Donald D. Vanarelli
• Evictions From Long-Term Care
  by William P. Isele
• Special Needs Settlement Planning: Preserving Public Benefits and Enhancing the Injured Party’s Quality of Life
  by Shirley B. Whitenack and Regina M. Spielberg
• The Use of Trusts in Divorce When Planning for the Disabled Spouse or Child
  by Susan L. Goldring
• Special Needs Estate Planning
  by Lawrence A. Friedman
• The Powerful Power of Attorney
  by Regina M. Spielberg
• Recent Revisions to the Social Security Administration’s Program Operations Manual System (POMS) Relating to Special Needs Trusts
  by Thomas D. Begley Jr.
• Guardianship Applications and Attorney’s Fees
  by Brenda McElnea
• Mediation as a Tool in Contested Guardianship Proceedings
  by Sharon Rivenson Mark
• Think Globally, Age Locally: New Jersey’s Global Options for Long-Term Care
  by Lauren S. Marinaro
• Elder Law’s New Frontier — VA Benefits
  by Robert F. Brogan
• Litigating Medicaid Issues in Federal Court
  by John W. Callinan
• Surveying the Recent Legislative Landscape: What Inures to the Benefit of Older Clients in New Jersey?
  by Marilyn Askin and Jennifer Judd

Special thank you to the Law Office of Donald D. Vanarelli Blog

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Elder and Disability Law, featured in the August 2010 issue of New Jersey Lawyer Magazine originally appeared on NJ Family Issues on September 3, 2010.

Section 2 of the Federal Arbitration Act (FAA), 9 U.S.C.A. § 2, provides that:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

[9 U.S.C.A. § 2.]

Under this section, the FAA preempts any state law purporting to invalidate an arbitration agreement “involving interstate commerce.” Young v. Prudential Ins. Co. of Am., 297 N.J. Super. 605, 616 (App. Div.), certif. denied, 149 N.J. 408 (1997). Section 1 of the FAA further defines “commerce” to include “commerce among the several States.” 9 U.S.C.A. § 1.

The United States Supreme Court has interpreted the term “involving commerce” to be the “functional equivalent of the . . . term ‘affecting commerce[,]‘ . . . provid[ing] for the enforcement of arbitration agreements within the full reach of the Commerce Clause.” Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56, 123 S. Ct. 2037, 2039, 156 L. Ed. 2d 46, 51 (2003).; see also Alfano v. BDO Seidman, LLP, 393 N.J. Super. 560, 574 (App. Div. 2007) (explaining that contracts involving commerce should be broadly construed to extend the FAA’s application to the limits of Congress’ Commerce Clause power).

The Court in Citizens Bank established that “the FAA encompasses a wider range of transactions than those actually . . . within the flow of interstate commerce.” Citizens Bank, supra, 539 U.S. at 56, 123 S. Ct. at 2040, 156 L. Ed. 2d at 51. Pursuant to Congress’ Commerce Clause power, the FAA will reach transactions “in individual cases without showing any specific effect upon interstate commerce if in the aggregate the economic activity in question would represent a general practice subject to federal control.” Ibid.

In 1976 the New Jersey Legislature passed the “Nursing Home Responsibilities and Rights of Residents” act (the Act), N.J.S.A. 30:13-1 to -17, in an effort “to ameliorate the harsh conditions of the elderly in nursing homes[.]” In re Conroy, 98 N.J. 321, 377 (1985).

The Act imposes certain responsibilities on nursing homes, N.J.S.A. 30:13-3, and declares the “[r]ights of nursing home residents,” N.J.S.A. 30:13-5. These rights include a right to “considerate and respectful care that recognizes the dignity and individuality of the resident,” and a right “[n]ot [to] be deprived of any constitutional, civil[,] or legal right solely by reason of admission to a nursing home.” N.J.S.A. 30:13-5 (j), (m).

N.J.S.A. 30:13-8 creates a private cause of action for damages for “[a]ny person or resident whose rights . . . are violated [under the Act] . . . against any person committing such violation.” N.J.S.A. 30:13-8a. Regulations promulgated under the Act create corresponding standards for assisted living residences, comprehensive personal care homes, or assisted living programs. N.J.A.C. 8:36-1.1 to -23.

In 2003, the Legislature amended the Act to include the following provision:

[a]ny provision or clause waiving or limiting the right to sue for negligence or malpractice in any admission agreement or contract between a patient and a nursing home or assisted living facility licensed by the Department of Health and Senior Services pursuant to the provisions of P.L. 1971, c. 136 (C. 26:2H-1 et seq.), whether executed prior to, on or after the effective date of this act, is hereby declared to be void as against public policy and wholly unenforceable, and shall not constitute a defense in any action, suit or proceeding.

[N.J.S.A. 30:13-8.1.]

Under § 2 of the FAA, arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2. The FAA thus preempts any state law or regulation that seeks to preclude the enforceability of an arbitration provision on grounds other than those which “exist at law or in equity for the revocation of any contract.” 9 U.S.C.A. § 2; see also Martindale v. Sandvik, Inc., 173 N.J. 76, 85 (2002).

Our State’s prohibition of arbitration agreements in nursing home contracts, designed to protect the elderly, is thus irreconcilable with our national policy favoring arbitration as a forum for dispute resolution. Under our federal system of government, national policy prevails. Therefore, the FAA’s clear authorization nullifies the specific prohibition of arbitration provisions in nursing home or assisted living facilities’ contracts contained in N.J.S.A. 30:13-8.1.

However, it is now well-settled that general “contract [law] defenses, such as fraud, duress, and unconscionability may be invoked to invalidate an arbitration agreement without contravening § 2″ of the FAA. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S. Ct. 1652, 1656, 134 L. Ed. 2d 902, 909 (1996).

Our Supreme Court also recognized this general principle in Muhammad, supra, 189 N.J. at 12. Thus, even though the FAA preempts the specific anti-arbitration provision in N.J.S.A. 30:13-8.1, the trial court may hold that the arbitration provisions in a residency agreements is unenforceable under the doctrine of unconscionability.

As explained by the Court in Muhammad, procedural unconscionability involves a “variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.” Muhammad, supra, 189 N.J. at 15.

Moreover, “adhesion contracts invariably evidence some characteristics of procedural unconscionability.” Id. at 16. A contract of adhesion “is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the ‘adhering’ party to negotiate except perhaps on a few particulars.” Rudbart, supra, 127 N.J. at 353.

As noted by the Court in Rudbart, and reaffirmed in Muhammad, however, the determination that a contract is one of adhesion represents only the first step in the analysis “into whether a contract, or any specific term therein, should be deemed unenforceable based on policy considerations.” Muhammad, supra, 189 N.J. at 15.

To determine substantive unconscionability, we must next look to and apply the four factors set forth by the Court in Rudbart: “[1] the subject matter of the contract, [2] the parties’ relative bargaining positions, [3] the degree of economic compulsion motivating the ‘adhering’ party, and [4] the public interests affected by the contract.” Rudbart, supra, 127 N.J. at 356.

Although the FAA preempts that portion of the Act which renders unenforceable arbitration provisions in residency agreements for nursing home and assisted living facilities, the other sections of the Act which protect the elderly and infirm remain legally viable.

In passing these laws, the Legislature recognized the need to protect a discrete class of citizens who, by virtue of their age and infirmity, are particularly vulnerable to sharp commercial practices, especially in the area of health care, housing, and end-of-life decisions.

The fourth prong under Rudbart concerns the public interests affected by the contract. As the Court noted in Muhammad, supra, this is “the most important [factor] to the present analysis [because it] considers the public interests affected by the contract.” 189 N.J. at 19.

As the Court did in Muhammad, the remedy here is to enforce our federal policy in favor of arbitration, while excising the unconscionable restrictions that we have concluded are unenforceable under N.J.S.A. 30:13-8.1.

See related Blog Post, published in the Law Office of Donald D. Vanarelli Blog

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The FAA’s clear authorization nullifies the specific prohibition of arbitration provisions in nursing home or assisted living facilities’ contracts originally appeared on NJ Family Issues on August 10, 2010.

The court may appoint a guardian of the person, estate or both under N.J.S.A. 3B:12-24.1, if it is proven that an individual is incapacitated…. The basic test of mental competency is whether the mind of the individual is unsound to such an extent as to render him incapable of governing himself and managing his affairs. N.J.S.A. 3B:1-1; 3B:1-2. Mere failure of memory, decay and feebleness of the intellectual faculties are not evidence of that degree of unsoundness of mind that will justify a finding a person incapacitated…. Moreover, “the burden of demonstrating that an individual is incompetent requires proof that is clear and convincing.” In re Goldemberg, 2006 WL 337083 (N.J. Super. Ch.), citing In re Grady, 85 N.J. 235, 265.

“All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty… and of pursuing and obtaining safety and happiness.” N.J. Const. Art. 1, 1. Unless they endanger themselves or others, competent people ordinarily can choose what they want, even if their choices are irrational or dangerous. In re M.R., 135 N.J. 155 (1994). Further, competent persons enjoy the right to determine treatment alternatives, including the termination of medical treatment. Id. The Supreme Court of New Jersey has held that the right to self-determination is a fundamental right. Matter of M.R., supra,… thus, the burden of proof must fall to the challenger of that right. Id. at 166, 169.

Although [the father’s] spending habits are not consistent with his long-held patterns of spending, eccentricity cannot be confused with diminished capacity. [The father] does not want a guardian and he wants to spend his money how he pleases. [He] wants to make his own decisions in a manner that makes his life good and meaningful and he has done so through non-traditional means by moving [the caregiver/companion] and her three children into his home. [He] wants to reside in his home and he is able to do so with the help of [the caregiver/companion]. Though there are more qualified caregivers available, [he] has chosen [her] to assist him in the home. It is [his] fundamental right to make such choices because he is a competent person.

See related Blog Post, posted on the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Mere failure of memory, decay and feebleness of the intellectual faculties are not evidence of that degree of unsoundness of mind that will justify a finding a person incapacitated originally appeared on NJ Family Issues on July 19, 2010.

A patient has capacity to consent to medical treatment if she can reasonably understand her condition, the effect of the proposed treatment, and the risks of both undergoing and refusing the treatment. In re Conroy, 98 N.J. 321, 382 (1985) (citing In re Schiller, 148 N.J. Super. 168, 181 (Ch. Div. 1977)).

New Jersey law recognizes a competent adult’s right to refuse life-saving medical treatment under both the right of privacy under the United States Constitution and the commonlaw right of self-determination. In re Conroy, 98 N.J. 321, 349 (1985) (ruling on the circumstances under which life-sustaining treatment may be withheld from incompetent, institutionalized, elderly patients with severe and permanent mental and physical impairments and a limited life expectancy).

In In. re Quackenbush, 156 N.J. Super. 282 (Cty. Ct. 1978), a patient who suffered from fluctuations in cognizance and was not consistently lucid was held competent to refuse a surgical procedure to amputate his legs, despite the likely fatal result. The determination was based upon the patient’s ability to understand the consequences of his decision. The patient was ruled competent to refuse treatment because he demonstrated an understanding of the likely consequences of such a decision. 156 N.J. Super. 282. During his interview with the Court, the patient stated he “hope[d] for a miracle but realize[d] there [wa]s no great likelihood of its occurrence.” Id. at 288. A competent patient is able to choose his course of treatment even if his medical decision may seem irrational or unsupported by medical evidence. ^[1] In re M.R., 135 N.J. 155, 167 (1994). If a patient is unable to understand the consequences of the decision, however, that patient is unable to give informed consent and is therefore incapacitated. In re Conroy, 98 N.J. 321, 347 (1985) (in which the Court discusses the doctrine of informed consent which mandates that patients have a “clear understanding of the risks and benefits of the proposed treatment alternatives or nontreatment, along with a full understanding of the nature of the disease and the prognosis,” quoting 310 New Eng. J. Med. 955, 957 (1984)).

The competency required to make medical decisions is comparable to that required to enter into a contract. In re Schiller, supra, 148 N.J. Super. at 180. As such, “[i]t is not necessary to show that a person was incompetent to transact any kind of business, but . . . it is sufficient to show that he was mentally incompetent to deal with the particular contract in issue. . ..” Ibid., quoting 17 C.J.S. Contracts §133(1).

The patient must have the capacity to “weigh the options.” In re Conroy, supra, at 382.

The patient’s alleged incapacitation ^[2] must be established by clear and convincing evidence. In re Moorhouse, 250 N.J. Super. 307, 313 (App. Div. 1991) (citing In re Conroy, supra, at 382).

See related Blog Post from the Law Office of Donald D. Vanarelli Blog.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

1. New Jersey courts have ruled that a patient found to be competent and aware of the consequences of her decision may exercise her right to refuse treatment for any reason, including when treatment violates the tenets of her religion. Further, guardians of incompetent patients must consider the tenets of a patient’s religion when determining the proper course of treatment. In re Hughes, 259 N.J. Super. 193, 200 (App. Div. 1992).
2. In 1997, the New Jersey Legislature amended N.J.S.A. 3B:1-2. The amendment applied to the entire statute and replaced the term “mental incompetent” with “incapacitated person.” 1997 N.J. Laws 379.

A patient has capacity to consent to medical treatment if she can reasonably understand her condition, the effect of the proposed treatment, and the risks of both undergoing and refusing the treatment originally appeared on NJ Family Issues on July 7, 2010.

Plenary guardian “‘General guardian’ means an individual or agency appointed by a court of competent jurisdiction to make all decisions in a person’s life pursuant to N.J.S.A. 3B:12-12(a).9 N.J.A.C. 10:43-1.3. “The New Jersey guardian of an incompetent’s person and property is required to provide for the care, safe-keeping and support of the incompetent.” ^[1] Gay v. Stengel, 61 N.J. Super. 411 (App. Div. 1961).

There are several provisions of the New Jersey Statutes Annotated that address the authority and responsibility of a plenary guardian. To begin, N.J.S.A. 3B:12-24.1, on the “[d]etermination by the court of need for guardianship services”, states:

General Guardian. If the court finds that an individual is incapacitated as defined in N.J.S.A. 3B:1-2 and is without capacity to govern himself or manage his affairs, the court may appoint a general guardian who shall exercise all rights and powers of the incapacitated person. The general guardian of the estate shall furnish a bond conditioned as required by the provisions of N.J.S.A. 3B:15-1 et seq., unless the guardian is relieved from doing so by the court.

N.J.S.A. 3B:12-48 addresses the power a guardian may exercise stating:

A guardian of the estate of . . . an incapacitated person has all of the powers conferred upon the guardian by law and the provisions of this chapter except as limited by the judgment. These powers shall specifically include the right to file or defend any litigation on behalf of the ward, including but not limited to, the right to bring an action for divorce or annulment on any grounds authorized by law.

N.J.S.A. 3B:12-57 elaborates providing the powers and duties of a guardian of the person:

f. [A] guardian of the person of a ward shall exercise authority over matters relating to the rights and best interest of the ward’s personal needs, only to the extent adjudicated by a court of competent jurisdiction. In taking or forbearing from any action affecting the personal needs of a ward, a guardian shall give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. To the extent that it is consistent with the terms of any order by a court of competent jurisdiction, the guardian shall:
(3) provide for the care, comfort and maintenance and, whenever appropriate, the education and training of the ward;
(4) subject to the provisions of subsection c. of N.J.S.3B:12-56, give or withhold any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment or service;
. . .
g. In the exercise of the foregoing powers, the guardian shall encourage the ward to participate with the guardian in the decision-making process to the maximum extent of the ward’s ability in order to encourage the ward to act on his own behalf whenever he is able to do so, and to develop or regain higher capacity to make decisions in those areas in which he is in need of guardianship services, to the maximum extent possible.

The statute was amended in 2005 to:

[C]larify that a guardian of the person of a ward is required to exercise authority over matters relating to the rights and best interest of a ward’s personal needs only to the extent ordered by the court. This section provides that a guardian is required to give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. This section also provides that to the extent that it is consistent with the terms of any order by a court, the guardian shall: take custody; provide for visitation; provide for the care, comfort, maintenance and education; provide for necessary consents or approvals; provide for possessions; institute any necessary actions; develop a plan of supportive services; and receive money and tangible personal property.

[Statement to Senate, No. 224 (dated: December 1, 2005).]

Although the guardian has the authority over matters relating to the rights and best interests of the ward, as stated above, this is guided by a ward’s self-determination or rather, the guardian should defer to the preferences of its ward if not contrary to the ward’s best interest.

Incompetent persons have a common-law right of self-determination, the same as that of competent persons, except that the right of self-determination of adjudicated incompetents must be balanced by the court with concern for their best interests. In re M.R., 135 N.J. 155, 167 (1994). This is because an adjudicated incompetent, “like a minor child, is a ward of the state, and the state’s parens patriae power supports the authority of its courts to allow decisions to be made for an incompetent that serve the incompetent’s best interests.” In re Conroy, 98 N.J. 321, 364–65 (1985). The decision maker’s responsibility is to carefully balance the incompetent’s right to selfdetermination with considerations of best interests and the protection of the incompetent’s person and property. See M.R., supra, 135 N.J. at 167.

The incompetent’s right to self-determination must be preserved to the extent possible. Some elderly nursing home patients, who are generally incompetent and unable to govern their own affairs, have lucid periods during which they can once again communicate their wishes clearly. See Conroy, supra, 98 N.J. at 382. Even those who are generally incompetent vary widely in their degree of alertness and in their ability to communicate. Thus, a patient may be competent to make a decision regarding a course of medical treatment “even if the patient previously had been adjudicated an incompetent and had a general guardian appointed pursuant to N.J.S.A. 3B:12-25.” Id.

If a patient is not competent to make a particular decision, the guardian has a duty to determine subjectively, to the extent possible, the course an incompetent would have taken regarding a particular decision if competent and apply a substituted judgment or subjective test. Conroy, supra, at 361–64. If some trustworthy evidence of an incompetent’s intent can be found, but not enough to fully determine subjective intent, this can be taken into account in determining the incompetent’s best interests, and a limited-objective test should be used. M.R., supra, 135 N.J. at 167; Conroy, supra, 98 N.J. at 365-66.

[Matter of Roche, 296 N.J. Super. 583, 588–589 (Ch. Div. 1996).]

A plenary guardian has “all of the powers conferred upon the guardian by law and the provisions of this chapter except as limited by the judgment.” N.J.S.A. 3B:12-48. The Legislature appears to have intended the guardian make all decisions with the consideration of the ward’s preferences and consent, where the same can be expressed and completely obtained. Roche, supra, 296 N.J. Super. at 588-589.

In Shambaugh v. Wolk, 302 N.J. Super. 380, 406 (Ch. Div. 1996), the court was asked to determine whether a daughter had certain visitation rights with her institutionalized mother despite her stepfather’s efforts to limit the same. The court determined the “plaintiff continues to enjoy the right to visitational access to and privacy with her natural mother to the extent that her natural mother thus consents, on her own, and without undue or inappropriate interference.” Id. Interestingly, the court made clear to differentiate a situation where the mother still had the ability to make such determinations, and those where a guardian or healthcare agent had been appointed. Specifically, the court emphasized this was not a guardianship situation and thus, visitational access was warranted “but only to the extent to which [the mother] affirmatively consents.” Id. at 403. Deductively, therefore, it may be concluded where a guardian is in place, the wishes or consent of the incapacitated do not carry the same level of persuasion or influence, but rather should be considered along with the individual’s best interests. Ibid. (stating “defendant’s stated concerns about his wife’s mental competency and physical condition may ultimately warrant a different result than the decision herein reached.”).

Thus, the guardian is expected to fulfill both the preferences of the incapacitated and their best interests. Where those two considerations are mutually exclusive the guardian must make a decision. Should a party disagree with the choice elected or if the guardian is not fulfilling his or her statutory responsibilities, that individual may seek the court’s intervention.

Plenary guardians possess the authority to control, monitor and schedule visitation with the incapacitated consistent with N.J.S.A. 3B:12-57.

See related Blog Post, published by the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

1. In 1997, the New Jersey Legislature amended N.J.S.A. 3B:1-2. The amendment replaced the term “mental incompetent” with “incapacitated person”.

Plenary guardians possess the authority to control, monitor and schedule visitation with the incapacitated originally appeared on NJ Family Issues on June 29, 2010.

If divorce is inevitable, I strongly recommend that you consider Mediation.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

Are divorces after forty years of marriage rare? Is “gray divorce” on the rise? originally appeared on NJ Family Issues on June 4, 2010.

For a thorough analysis of this issue, read: New Jersey Rewrites The Rules Concerning Gifts Made By Medicaid Applicants Which Are Later Returned, published in the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

No adjustments to the penalty period resulting from a gift made within the look-back period can be made unless all assets gifted during the look-back period are returned to the Medicaid applicant originally appeared on NJ Family Issues on June 4, 2010.

See related Blog Post-1 and Blog Post-2, both published on the Law Office of Donald D. Vanarelli Blog.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200

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Check on the validity of your Life Care Contract originally appeared on NJ Family Issues on March 26, 2010.

For years, divorcing couples have hired mediators to avoid court battles. Now, some mediators are starting to specialize in resolving disputes that relate to older adults, such as those over inheritances and caregiving.
[SOURCE: Mediators Focus on Elder Issues, by ANNE TERGESEN, published in The Wall Street Journal Digital Network.]

For more information abut my Confidential Mediation Services, go HERE.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200

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Mediation and the elderly originally appeared on NJ Family Issues on March 17, 2010.