An Equitable Adoption?  You Are Either Legally Adopted or You Are Not.  There is No In-Between. (Part 1)

HNW Additional Practice Areas, Elder Law

By Fredrick P. Niemann, Esq., a Freehold Township, Monmouth County, NJ Probate Attorney Part 1 of a 2 Part Series Adoptions are a very serious matter, yet there is no shortage of interesting cases under the law of adoption(s).   One might think that an adoption fits the description of a straightforward proceeding involving adoptive parents, biological parents and the successful exchange of legal rights to parentage.  Sometimes, however, you get a really interesting case like the one that I am about to summarize for you which involves the death of a biological parent in which a child was never formally adopted but raised as if the biological child of a stepparent.   I think that you will find this case very …

Just How Far Must You Go To Serve A Lawsuit Upon a Defendant (Part 3 of a 3 Part Series)

HNW Business Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Trial & Litigation Attorney In Parts 1 and 2 of this blog post, I discussed the appeal of a tax sale foreclosure action and the court’s legal analysis.  Read on for the outcome of the case. Here, plaintiff contends it properly served defendant pursuant to Rule 4:4-5(a)(2) by mailing the summons and complaint to defendant’s address, but such rule provides a party may be served by mail as long as the serving party adheres to Rule 4:4-4(b)(1)(C). But the court said that in order for the kind of service plaintiff endeavored to effectuate here to be effective, plaintiff first had to attempt personal service in accordance with …

Why Is a Guardianship Necessary in New Jersey?

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold Township, Monmouth County, NJ Guardianship Attorney One of the most important reasons to have a guardianship in place is to expedite medical treatment needed by the disabled person. Doctors and hospitals under certain conditions may refuse to perform non-emergency procedures on disabled patients without legally authorized consent. A guardian can provide legal consent to authorize a medical procedure. Having a legal guardian appointed is also necessary in order to give consent on behalf of a person in situations regarding their well-being, such as consenting to treatment plans, consenting to the use of medications, acknowledging receipt of rules, regulations and rights, and signing various forms regarding benefits, procedures, etc. A guardianship …

How Guardians Are Compensated in New Jersey

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. a NJ Guardianship Attorney Guardians are reimbursed for expenses, and paid for their services, from the assets of the person they are taking care of. Payments must be “reasonable” in the eyes of a court. Generally, payments are only made to professional or public conservators, but a family member who has been appointed conservator may also seek compensation by making a request to the court. Financial Support for Someone under a Guardianship A conservator isn’t required to support the guardian, just to manage the guardians’ own assets and make personal decisions for him or her. A financial guardian does have the responsibility to seek all financial benefits and coverage for which the guardian may qualify. …

Using a Dementia Assessment and Psychological Report in the Trial of a Contested New Jersey Estate

HNW Elder Law, Estate Administration and Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann, Freehold, New Jersey, a NJ Probate Litigation Attorney In New Jersey, the most frequent grounds for contesting a will or a trust in New Jersey are: Lack of Mental Capacity, and Undue Influence. It is generally recognized by will contest lawyers that there are (2) two levels of mental capacity required by a person at the time of his/her execution of estate planning documents, such as a will, trust, power of attorney for property and for life care planning, and a living will, health care directive.  They are: Testamentary capacity, and Contractual capacity. Mental Capacity is the term used to determine the degree to which an individual has the testamentary and contractual …

Understanding the Basics of a Guardianship Proceeding in New Jersey

HNW Elder Law, Guardianship Law

By Fredrick P. Niemann, Esq. a Freehold Township, Monmouth County, NJ Guardianship Attorney The best way to avoid a guardianship is for an older person to prepare a durable power of attorney before a health crisis occurs. That way, someone handpicked will be able to step in to make financial and medical decisions if necessary. But what happens when a guardianship proceeding is filed? The Court Process and Guardianships Anyone — including the proposed guardian, family members, and friends — may object to a guardianship in general, or to the specific choice of a proposed guardian. Someone who wants to block a guardian must file papers with the court, inform all interested parties (the proposed guardian, family members, and possibly close …

Claims of Undue Influence, Coercion and Duress in Elder Financial Exploitation Lawsuits

HNW Elder Abuse and Financial Exploitation, Elder Law

By Fredrick P. Niemann, Esq. a NJ Elder Abuse and/or Financial Exploitation Attorney The most commonly used theory for law suits filed by Hanlon Niemann in cases involving elder financial exploitation are undue influence (https://www.elderabuseinnj.com/challenging-gift-undue-influence/), coercion and duress. These legal theories claim that the elderly victim, when executing a legal document or otherwise, was unable to voluntarily exercise his or her own free will due to the undue influence, coercion or duress wielded by another person over him or her.  Undue influence, coercion and duress can be thought of as a trilogy, sort of. At one end, putting a gun to a person’s head and ordering him or her to sign a deed would be an example of duress.  At the …

What is the LLC Buy-Out Standard?

HNW Business Law, Partnership Rights Litigation

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, New Jersey LLC Attorney The New Jersey Revised Uniform Limited Liability Act (RULLA) contains an express provision granting relief to oppressed minority LLC members.   The current LLC Act authorizes the remedy of a buy-out in lieu of dissolution.  Unlike the corporate statue, which expressly provides that the buy-out be at fair value (assuming there is no contrary direction in a shareholders agreement), the current LLC Act does not specify at what value the buy-out is to be made. In an Operating Agreement LLC members, like shareholders in a shareholders agreement, can dictate the agreed value standard under which a member claiming oppression is to be …

News Alert – In China It’s Visit Your Parents — Or Get Sued By Mom & Dad

HNW Elder Abuse and Financial Exploitation, Elder Law

By Fredrick P. Niemann, Esq. a New Jersey Elder Abuse Attorney Can you believe this article I recently read?  China is cracking down on adult children who may be neglecting or possibly abusing their elderly parents.  Is this a possibility in the U.S.? Do you like to visit your Mom and/or Dad?  In China, it’s now a law. The Chinese national legislature now requires that adult children visit their parents often. Otherwise, elderly parents who feel ignored can sue their kids. Wow, that’s the kind of relationship I want to foster. The law is partly a reflection of a cultural change in parts of the developing country. The traditional extended family in China is fading, according to the Associated Press. …

Level of Capacity With Respect to Wills, Trusts, and Powers of Attorney Under NJ Law

HNW Elder Care Law, Elder Law

By Fredrick P. Niemann, Esq. a NJ Elder Law Attorney Legal Capacity is required for the legal execution of a will and/or a testamentary trust under New Jersey law. a. What is legal capacity and what does it mean under New Jersey Law? Legal capacity (sometimes called Testamentary Capacity) requires:A person to be at least 18 years old, and b.  A person who is of sound mind and memory. So what do these terms mean?  An easy way to establish that a person is of “sound mind and memory,” is to demonstrate that the person who signed their Last Will or trust at the time of his or her signing: i. Knows that he/she was/is making a will; ii. He or …