Designating your representative can prevent a fight over your remains

I have been saying for years that taking the time to put things in order in proper legal documents can save a lot of headache and money in the long run. “Careful planning can prevent a crisis” has been one of my professional mottos for many years now. New Jersey has a statute that allows a person to sign a document that designates a Funeral and Disposition Representative who has authority to make the decisions about final disposition of the body at death. A person can write these instructions in a Last Will and Testament or can sign a separate document and provide it to whoever might need to know. A new court decision called In the Matter of Estate of John Travers Jr. Travers App Div tackles the thorny problem of who is entitled to make those decisions for a person who died without a Will and without any written designation.

John Travers, Jr.,  died without any written instructions concerning his remains. He had no Will. He was single and had no children. His parents survived him, but they were divorced  They disagreed over what should happen — the father believed that his son should be buried, but the mother believed that his remains should be cremated. . The court noted that under the statute, the priority would be given to (1) spouse if any; (2) majority of the adult children if any, and then (3) the surviving parents. However, the statute said nothing about what to do when there is a dispute between the parents, who are the equally-situated next-of-kin.

The Appellate Division decided that the Legislature would want the decision to be as much in accordance with the individual’s preferences as a court could discern . Here, he had failed to make his wishes known, but there was evidence that he had a closer relationship with his father at the time of his death. The Court decided that the father was therefore in a better position to determine what his son’s wishes would be. Another factor that impressed the Court was that the father was likely to be appointed administrator of the estate and would also likely pay for all disposition arrangements himself since his son had few assets.

Family planning is full lifetime planning. Call us for individualized assistance and solutions ……. 732-382-6070

Guardian needs a Court Order to move incapacitated person out of State

Once a Court has ruled that a person is “incapacitated” and has appointed a Guardian of his person and property, the Guardian has many responsibilities and also, there are  certain restrictions on what a Guardian may do. The details are spelled out in New Jersey’s laws and court rules. Also, each County may have certain specific procedures of its own. One of these limitations is that the Courts of New Jersey have jurisdiction over the person of the individual who is under a guardianship, and a guardian must seek court permission to move the “ward” out of state.

A guardianship may last for many years, and there are certainly circumstances in which it is in the person’s best interest to move out of state. One example would be, if the Guardian needs to relocate for a new job or family circumstance. If the Guardian already resides out of state, s/he may find that the ward is running out of funds and could receive equivalent local care at much less expenses. There might be a specialized program out of state that is ideal for the individual, with a plan for the individual to become a resident of that state.

The Guardian typically would need to file a Verified Complaint with the same Court that entered the Guardianship judgment, seeking authorization to transfer their ward out of state. Very likely, the Court will want to see an updated report of the income and assets; a proposed care plan; an opinion from a physician or other involved professional that the transfer is medically safe and will promote the ward’s best interests; information from the receiving site that confirms the availability of a placement. The Court may appoint an attorney or a guardian ad litem for the incapacitated person.  If the ward has family members who remain in New Jersey and who have an ongoing involvement with the ward, the Guardian may want to consider obtaining consents from those people as well. The Guardian needs to put together as strong a case as possible to increase the likelihood of a favorable ruling. Clearly, this process won’t happen overnight, and the matter could become contested.

The Guardian is accountable to the Court, as the Court has continuing jurisdiction over the person residing in New Jersey who is under guardianship. As in all things, careful planning can prevent a crisis. If a guardian needs to relocate, they should start the planning enough in advance to facilitate a smooth transition to the receiving state for the senior adult or other person under guardianship. Once there, new proceedings will be needed to establish the guardianship in the receiving state … there is a uniform Act [UAGPPJA], but  each state has its own procedures for that.

Call for advice and representation on guardianship matters … 732-382-6070