Category: Updates

Industry updates

Carteret Ferry Moves Forward

Posted on | by LawFirm

The law firm of Bathgate Wegener & Wolf, P.C. (“BWW”) has represented the Borough of Carteret since 2013.  During that time senior partner William Wolf represented Carteret in relation to the development of its waterfront for various public purposes including a 190 boat marina and a ferry terminal for service from Carteret to New York City.  This ferry service will not just benefit the residents of Carteret but the ferry from Carteret to New York City will expand commuting options to New York City on a regional basis consisting of Middlesex County, Union County, Somerset County, Monmouth County and Ocean County. 

With the New Jersey Turnpike at or over-capacity, the overcrowded NJ Transit Bus Service struggling to accommodate commuters, and the absence of direct rail service to or from Carteret, the ferry will provide a convenient and reliable transportation alternative to New York City. The Carteret Ferry Terminal is likely to accelerate the transformation of an area of environmental degradation into a catalyst for economic development while reducing congestion on the New Jersey Turnpike and roads leading into the Holland and Lincoln Tunnels. The estimated travel time by ferry between Carteret and New York City is fifty (50) minutes.

The ferry service from Carteret to New York City will be a component of a truly intermodal transportation hub.  Carteret will provide municipal jitney service to the ferry terminal.  It is anticipated that the Carteret ferry terminal will become one of the stops on a bus route currently operated by New Jersey Transit.  The Carteret ferry terminal is only several minutes away from Exit 12 on the New Jersey Turnpike; thus, making the ferry a cost-effective final leg for motorists connecting to New York City from locations in Middlesex County, Union County, Somerset County, Monmouth County and Ocean County.

Recently, Carteret announced two major milestones in the plan to provide ferry service between Carteret and New York City. First, Carteret passed a major hurdle in the construction of the Carteret Ferry Terminal. The New Jersey Department of Transportation notified the Borough that the Interagency Review Committee (IRC) including the Federal Highway Administration (FHWA) recommended approval for the Borough to proceed to the Preliminary Engineering phase of the Carteret Ferry Terminal project. This determination brings the Borough one step closer to receiving $2,213,833 in federal construction funds. Second, The Federal Transit Administration awarded $6 million to New Jersey Transit to purchase a 299-seat passenger ferry that it, in turn, will lease to Carteret for $1 per year, bringing the total federal funding for the project to over $10 million.  The ferry boat will be built to Carteret’s specifications. Additional boats will be provided by the operator who will be selected through public bidding.  

If you have any questions regarding the development of the Carteret waterfronts or ferry service between Carteret and New York City, please contact William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com. 

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years.  Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

RECREATIONAL MARIJUANA HAS A BRIGHT FUTURE IN NEW JERSEY

Posted on | by LawFirm
With Governor-elect Phil Murphy poised to take the helm as New Jersey’s next Governor, recreational marijuana supporters are beginning to feel giddy.  A major platform of Mr. Murphy’s campaign for Governor was to put an end to the prohibition against recreational marijuana in the State of New Jersey.  Some say the rationale for doing so is motivated by the estimated $300 million in tax revenue from marijuana sales.  While recognizing the benefit of a new revenue stream from recreational marijuana sales, which may fund education programs and public workers’ pension, Mr. Murphy points to criminal justice reform as his primary reason for legalization.  For supporters, legalizing marijuana is a win-win no matter the primary reason.

State Senate President Stephen Sweeney, D-Gloucester, controls which bills the Senate will debate and vote on.  He has stated that his goal is to pass recreational marijuana legislation within the first 100 days of the Murphy administration.   State Senator Nicholas Scutari, D-Union, the sponsor of the Recreational Marijuana Bill (S3195), which has been undergoing revisions since he introduced it on May 18, 2017, has pronounced it is full steam ahead for the legalization of recreational marijuana.
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Now that Governor Christie is on his way out of Trenton and will no longer pose as an impassable obstacle to recreational marijuana legislation, it is expected that hearings on the pending bill will be scheduled in short order.  Mr. Scutari has stated that he would like to try to develop language that would promote marijuana entrepreneurship among minority communities, who Mr. Murphy aptly recognized have been disproportionately affected by marijuana-related arrests and convictions.  As initially introduced, (S3195) will do the following:

  • Legalize individual possession for those over the age of 21 of up to one ounce of marijuana; 16 ounces of products infused with the drug in solid form; 72 ounces in liquid form and seven grams of marijuana concentrate.
  • Create a Division of Marijuana Enforcement within the state Department of Law and Public Safety and direct that agency to set up regulations and licensure programs for growers and distributors within a year of the bill’s passage.
  • Decriminalize possession of up to 50 grams immediately, limiting fines to $100 until the regulated industry gets up and running and creates a system for marijuana offenders to expunge their criminal records.
  • Set up an escalating sales tax on marijuana starting at seven percent in the first year, 10 percent in the second and jumping five percent each year thereafter to a final tax rate of 25 percent.
  • Prohibit growing marijuana at home and ban its use in public.
Mr. Murphy will assume the Governorship on January 16, 2018.  According to Senator Sweeney, the goal is to legalize recreational marijuana within the first 100 days, which would be by April 26, 2018.  We don’t know whether that goal will be accomplished, but what we do know is that we now have a Governor who will be ready, willing and eager to sign the bill into law when it arrives at his desk.
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If you have a question about your rights as a medical marijuana user or questions about legal issues that may arise if recreational marijuana is legalized in New Jersey, please feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at rmalc@bathweg.com.

Inverse Condemnation Claim Lost by Lot Merger

Posted on | by LawFirm
​On June 23, 2017, the United States Supreme Court decided the case of Murr v. State of Wisconsin. This lawsuit involved a claim for inverse condemnation. The plaintiffs contended that certain land use regulations had reduced the value of their property.

Plaintiffs are the owners of two contiguous lots. The regulations prohibited owners of adjacent lots from selling their lots as separate building sites unless each lot contained at least one acre of developable land. Because the plaintiffs’ two lots did not each contain one acre of developable land, the plaintiffs effectively had to merge their two lots into a single lot in order to build a house. Plaintiffs, therefore, claimed the land use regulations caused them to incur an economic injury by reducing their land holdings to a single buildable lot.

For an inverse condemnation claim based on the application of a land use regulation to be viable a land owner must prove they have been deprived of all economically beneficial or productive use of their land. Alternatively, a property owner must prove the regulation interfered with their investment-backed expectations for their property. It is difficult to prove either one of those elements of adverse economic impact.

In Murr, the Supreme Court concluded that the plaintiffs had not proved their case. The basis of that decision was the Court’s conclusion that the plaintiffs’ two contiguous lots should be evaluated as a single parcel of property. Once those lots were merged, it was impossible for the property owners to establish they lost all economically beneficial or productive use of their land because they still owned a buildable and valuable lot. Plaintiffs were incapable of proving their reasonable economic expectations had been thwarted because, despite the land use regulation, they could develop their property as a home site.

Murr is likely to have an impact on regulatory based inverse condemnation claims in New Jersey. It is not uncommon for property owners to hold contiguous lots in a single name. Issues arise when government approvals are sought for one or more of those lots. This situation frequently occurs when adjacent lots are sold to a purchaser who wants to develop and resell the lots for more than one house.

If you have any questions regarding the impact of Murr v. State of Wisconsin on eminent domain, condemnation, inverse condemnation or land use and zoning regulations, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com

Mr. Wolf has represented clients in condemnation and inverse condemnation cases.
Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years.  Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

Photo by Abdul Zreika on Unsplash

Beware Of The Other Current That Causes Drowning

Posted on | by LawFirm

As was tragically evident from the recent death of a young girl in a lagoon in Toms River, New Jersey, water and electricity make a deadly combination. That child died when she was electrocuted while swimming in a lagoon.

According to published reports, that swimmer came in contact with a portion of a metal boat lift. It is believed that electric current used that metal object as a pathway into the water.

According to the Electric Drowning Prevention Association, contact with an electric current on a metal object that protrudes into water can cause muscle paralysis that can lead to death by drowning. The presence of electricity in the water can also lead to the injury or death of people who attempt to rescue the drowning swimmer.

Frequently, the source of the electricity is related to a power source on a dock or a boat moored in a marina. There is, however, an alternative source that can be easily overlooked. That potential source is known as stray current.
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Stray current refers to the flow of electrical current into the water, ground or metal objects. That flow of current can be caused by an imbalance in an electrical system or flaws in wiring or electrical components.

The source of stray current can be located far from an object, a swimming pool, or a body of water that appears to be the site at which a person experienced a shock. As a result, stray current as the potential source of an accident or a fatality can be easily overlooked. Thus, when an injury is caused by electrical shock, it is sometimes necessary to expand the scope of the investigation to other areas on or off the location at which the accident occurred.

William J. Wolf, Esq. has represented clients in cases involving stray current and electromagnetic fields. In each instance, Mr. Wolf was able to obtain favorable jury verdicts for his clients.

If you have any questions regarding the impact of stray current, electromagnetic fields, electrocution or other personal injuries, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.

Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years.  Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

LEGALIZATION OF RECREATIONAL MARIJUANA IN NEW JERSEY

Posted on | by LawFirm
The statewide debate over the legalization or decriminalization of recreational marijuana continues to advance at a rapid pace.  According to recent polls conducted by New Jersey Advanced Media, upwards of 90% of its readers believe marijuana should be legalized.  Despite an overwhelming majority of people in New Jersey who support the legalization of marijuana, and the recent proposal of a bill by State Senator Nicholas Scutari that would do just that, Governor Christie continues to rebuke the idea as “beyond stupidity.”

As Governor Christie’s final term in office draws to an unpopular end, his opinion and disparaging comments directed at marijuana supporters have become less and less meaningful. Time will soon tell how the next administration deals with this pressing issue, but it appears that change is imminent.  Democratic candidates Ambassador Phillip Murphy, Assemblyman John Wisniewski and Jim Johnson support legalization of marijuana while Senator Ray Lesniak supports decriminalization.  Republican candidates Lieutenant Governor Kim Guadagno and Assemblyman Jack Ciattarelli support decriminalization.

In the meantime, however, on May 15, 2017, Senator Scutari introduced a bill that would make recreational marijuana legal in New Jersey.  Senator Scutari’s proposed measure would do the following:
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  • Legalize individual possession for those over the age of 21 of up to one ounce of marijuana; 16 ounces of products infused with the drug in solid form; 72 ounces in liquid form and seven grams of marijuana concentrate.​
  •  Create a Division of Marijuana Enforcement within the state Department of Law and Public Safety and direct that agency to set up regulations and licensure programs for growers and distributors within a year of the bill’s passage.
  •  Decriminalize possession of up to 50 grams immediately, limiting fines to $100 until the regulated industry gets up and running and creates a system for marijuana offenders to expunge their criminal records.
  • Set up an escalating sales tax on marijuana starting at seven percent in the first year, 10 percent in the second and jumping five percent each year thereafter to a final tax rate of 25 percent.
  • ​Prohibit growing marijuana at home and ban its use in public.
The process of passing a bill is time consuming and includes legislative hearings and votes in the Senate and Assembly.  If a bill legalizing marijuana is passed, Governor Christie has vowed to veto it. Nevertheless, by the time our next governor is sworn in, Senator Scutari’s bill may be waiting for his or her signature.  Until then, we can all expect that the debate over the legalization of recreational marijuana will continue, energizing supporters and objectors alike.
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​If you have a question about your rights as a medical marijuana user or questions about legal issues that may arise if recreational marijuana is legalized or decriminalized in New Jersey, please feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at Rmalc@bathweg.com.

Medical Marijuana: Smoke At Your Own Risk

Posted on | by LawFirm
The use of marijuana, whether for medicinal or recreational purposes, is a hotly debated issue in our country.  Like many divisive issues, strong opinions exist on both sides of the debate.  There are currently twenty-eight (28) states, plus the District of Columbia, that have passed laws permitting the use of medical marijuana, subject to various limitations.  Eight states, plus the District of Columbia, have passed laws legalizing the use of recreational marijuana. 
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In 2010, New Jersey passed into law the New Jersey Compassionate Use Medical Marijuana Act.  There are over 11,000 New Jersey residents who have been issued ID cards permitting them to purchase medical marijuana at one of the State’s five (5) dispensaries.  New Jersey’s medical marijuana law, like all other similar laws around the country that legalize the use of medical or recreational marijuana, is at odds with Federal Law that prohibits the use of marijuana.  Recently, the conflicts between State and Federal Laws relating to the use of marijuana have met head-on in New Jersey Federal Courts, mainly in the context of employment law.

For example, on February 22, 2017, the United States District Court in New Jersey granted a motion to dismiss by the defendant employer, Robert Half Corporation.  The plaintiff, Thomas Barrett, was a New Jersey medical marijuana ID holder and an employee of Robert Half Corporation.  He was terminated from his employment after testing positive for marijuana. Although Mr. Barrett gave notice to his employer that he was a participant in the medical marijuana program due to severe back pain from an auto accident, the Federal District Court judge ruled that the notice did not constitute a request for accommodation of a disability.  For that reason, Mr. Barrett’s case was dismissed.

By way of further example, Jason Wild was diagnosed with cancer.  To help deal with the effects of cancer, his doctors prescribed him medical marijuana.  He worked during the day at a funeral home, and smoked medical marijuana at night to help ease his pain.  His employer, Carriage Services, learned about Mr. Wild’s medical marijuana use when he disclosed it to hospital personnel after he was involved in a car accident.  Upon receiving this information, the employer fired Mr. Wild.

Mr. Wild filed a lawsuit against Carriage Services alleging violations of New Jersey’s Law Against Discrimination.  He also asserted a claim for Defamation arising out of his bosses’ alleged statements to other funeral directors warning them that Mr. Wild is a drug addict.  On February 28, 2017, Carriage Services filed a motion to dismiss Mr. Wild’s complaint.  In support of its motion, Carriage Services advanced the following arguments: (1) because Mr. Wild never requested an accommodation related to his medical marijuana use, he does not have a valid claim pursuant to New Jersey’s Law Against Discrimination, and (2) the New Jersey Compassionate Use Medical Marijuana Act is pre-empted by Federal Law.

As of the date of this article, the Federal Court has not yet ruled on Carriage Service’s motion to dismiss. Undoubtedly, both objectors and advocates of medical marijuana will be keeping a close eye on the outcome of Mr. Wild’s case.  Interestingly, there is legislation pending in the New Jersey State Senate and Assembly that would essentially make it illegal for an employer to take adverse employment action against an employee who is a registered medical marijuana ID holder and tests positive for marijuana use.  The bill, S-2161, has not yet received an up or down vote.   Unless and until this legislation is passed or there is a change in Federal Law, New Jersey medical marijuana users will have to smoke at their own risk.​

To discuss the interplay between State and Federal Laws relating to the use of marijuana, or any other legal issues, feel free to contact Ryan S. Malc, Esq. at 732-363-0666 or at Rmalc@bathweg.com.

Jointly Owned Property and Inverse Condemnation

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There are two (2) ways that property can be taken by the government.  The most common way is through the invocation of the government’s power of eminent domain also known as condemnation. The other way property can be taken by the government is through inverse condemnation. This indirect way of taking property occurs in two (2) ways.  One way is very obvious because it consists of the government physically occupying property without permission from the property owner.  The other less obvious way is through the regulation of property which adversely effects the use or value of a parcel of property.  In order for the regulation of property to result in a constitutionally forbidden taking of property, it must deprive the property owner of substantially all of the beneficial use of the land.
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In the case of Murr v. State of Wisconsin, the United States Supreme Court is being asked to consider an inverse condemnation claim involving two (2) adjacent lots that are jointly owned.  After those lots were purchased, a land use or zoning regulation was adopted that changed the amount of developable land that was required in order to build a house.  A house, therefore, could not be built on either lot.  But if the two (2) lots were combined into a single lot then one house could be built.In Murr, the landowners contend the land use or zoning regulation made each of their lots unbuildable because neither one had the minimum developable area required by that regulation.  They, thus, argue they had a claim for inverse condemnation.

The Wisconsin Supreme Court disagreed.  The state court concluded that because the lots were in joint ownership they merged into a single lot which met the minimum developable area for a house.  As a result, the inverse condemnation claim was dismissed because the property owners had not been deprived of substantially all of the beneficial use of their property.

If the United States Supreme Court agrees with the ruling of the Wisconsin court regarding lot merger, the property owners will not be successful with their inverse condemnation claim.  That result will occur because they will not have lost substantially all of the beneficial use of their land because a house could be constructed on the single larger lot created by the merger of the two (2) adjacent parcels.

Claims for inverse condemnation based on land use regulations have been the subject of many court decisions in New Jersey.  Such claims are still being litigated.  For instance, there is currently a dispute between property owners and the New Jersey Department of Environmental Protection (“NJDEP”) over development permits for two (2) adjacent oceanfront lots.  NJDEP has taken the position that the common owners are not entitled to permits to build two houses even though the property owners have separately paid the real estate taxes for those adjacent jointly-owned lots.
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The lesson to be learned from Murr is to avoid taking title to adjacent property in the name of the same owner.  The better practice is to keep title to the lots in different names so the government cannot claim that adjacent parcels of property merged into a single lot.

If you have any questions regarding the impact of Murr v. State of Wisconsin on eminent domain, condemnation, inverse condemnation or land use and zoning regulations, please call William J. Wolf, Esq. at 732-363-0666 or send an email to wwolf@bathweg.com.  Mr. Wolf is a Senior Fellow of the Litigation Counsel of America, he has been designated as a Super Lawyer and AV Preeminent® for many years. Mr. Wolf has been certified by the American Institute of Appellate Practice as an appellate specialist.

Cancellation of Real Estate Contract By Email Finally OK

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The New Jersey Supreme Court ruled on April 3, 2017 in Conley v. Guerrero, that residential real estate contracts can properly be cancelled by email or fax.  The central issue in the case was whether the Defendant-Seller of a residence effectively terminated the Contract for Sale with Plaintiffs-Buyers during the “three day” attorney review period set forth in the Contract for Sale.
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None of the parties disputed the facts of the case.  The Buyer and Seller signed a Contract For Sale that included the standard attorney review clause, mandated by the Court in New Jersey State Bar Ass’n v. New Jersey Ass’n of Realtor Boards, 93 N.J. 470, 476-77 (1983), modified, 94 N.J. 449 (1983), and N.J.A.C. 11:5-6.2(g)(2), which gave the parties’ respective attorneys three business days to review the contract before it became legally binding.  Specifically, the “three day attorney review” clause, provided:
The Buyer or the Seller may choose to have an attorney study this Contract. If any attorney is consulted, the attorney must complete his or her review of the Contract within the three-day period. This Contract will be legally binding at the end of this three-day period unless an attorney for the Buyer or the Seller reviews and disapproves of the Contract . . . If an attorney for the Buyer or the Seller reviews and disapproves of the Contract, the attorney must notify the REALTOR(S) and the other party named in this Contract within the three-day period. Otherwise this Contract will be legally binding as written. The attorney must send the notice of disapproval to the REALTOR(S) by certified mail, by telegram or by delivering it personally. The telegram or certified letter will be effective upon sending. The personal delivery will be effective upon delivery to the REALTOR’s office. The attorney may also, but need not, inform the REALTOR(S) of any suggested revision(s) in the Contract that would make it satisfactory.
After the Contract For Sale was executed, Seller received a competing offer and entered into a Contract with a third party.  The Seller’s attorney sent a letter via email and fax advising Plaintiffs’ attorney that the agreement was terminated, stating, “This will confirm that the above referenced contract has been terminated by the seller and the realtors are hereby authorized to release the initial deposit monies to the buyers.”  It was undisputed that Plaintiffs’ attorney and the agent received the letter within the three-day period.

Despite having received the letter terminating the Contract, Plaintiffs’ attorney faxed a letter to Defendant’s attorney asserting that the original contract was in “full force and effect.” because “the 3 days within which an attorney may terminate this contract has expired.” The Buyers argued that the Sellers were required to strictly adhere to the contractual provision specifying the methods of delivery as certified mail, by telegram or by delivering it personally, even though the Buyers’ attorney admitted that the Buyers received the cancellation notice.

The Court found that strict enforcement of the contractually identified methods of delivery would frustrate the contract’s overarching purpose and elevate form over the protective reasons for the attorney-review provision.  Therefore, the Court held, “notice of disapproval of a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remains three business days.”  This case finally brings New Jersey residential real estate contracts into the digital age.
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The attorneys at Bathgate, Wegener & Wolf, P.C. are well versed in all aspects of residential real estate contracts.  If you have questions about your real estate contract, please contact us at 732-363-0666.

The Iconic Building That Is Home To Bathgate, Wegener & Wolf

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Many people leaving the Garden State Parkway at Exit 89 or driving on Cedar Bridge Road wonder what activities occur under the steeply pitched roofs of the unique building known as One Airport Road, Lakewood, New Jersey.  That iconic building is the home of the Bathgate Wegener & Wolf law firm.  Our law firm employs 45 people and we occupy the entire building.  Our unique building has been named in an architectural guide book as one of 150 Best Buildings in New Jersey.   
This truly unique building was designed by Noboru Kobayashi.  The architectural guide book describes the building as having a “spare and elegant design … made up of pure geometric forms that recall both Shinto temples and the Louis Khan Bath House in Ewing Township.  The complex consists of nine square pavilions of ascending dimension offset from each other on diagonal axes.  The pavilions are capped with steeply pitched pyramidal roofs covered by wood shingles”.
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From the unique roofline it might seem there are several buildings.  Actually, there is only one building that has a roofline consisting of nine pyramids.  Although it appears that the pavilions are separate structures, the building has a unified floor plan consisting of several intersecting ovals.
​Beginning with its stone entry terraces, the building has many unique features. Our main entrance is framed by fountains, a moat and a waterfall.  The fountains are not only visually dramatic but also generate a pleasing sound as the water cascades down the waterfall and is propelled high into the air before splashing into the largest of the reflecting pools.

​The interior of the building is graced by two gardens that provide a very pleasing internal landscape of shrubbery and flowers. One of those gardens has its own pool. The internal gardens, open to the sky, provide light and air that enlivens the interior of several of the pavilions.​The reception area has a soaring ceiling capped by a glass peak and brick walls that are accented by the soft glow of wall mounted lights.  From that vantage point our clients and visitors are able to view the interior gardens. 

​A truly attractive feature of one of the pavilions is a library constructed as a room within a room.  This pleasing architectural dimension permits access to our bound book collection without the stacks of shelves typically associated with traditional libraries.  In our modern law firm, each of our 45 individual computer terminals has direct access to the latest version of computerized legal research software.

​Anyone who is interested in touring the public areas of the Bathgate Wegener & Wolf, P.C. office will have that opportunity in conjunction with the upcoming immigration seminar that we will host.

What Is Guardianship In New Jersey and How Does It Work – Part 3 of 3

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In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series, we discussed the court hearing process, the possibility of the appointment of a Temporary Guardian, and the bonding requirements for a Guardian.  In Part 3 of this 3 part series, we discuss some of the tasks that must be performed by the Guardian, the reports which must be filed by the Guardian, and the compensation that a Guardian may receive for performing his or her duties.C.  AFTER THE JUDGEMENT OF INCAPACITY AND APPOINTMENT OF GUARDIAN
​Congratulations! You’ve been appointed as Guardian of your loved one.  Just when you thought your involvement with the Court is over, now the Court oversight begins.  Being appointed as Guardian imposes significant responsibility and record-keeping.  Further, once the Court appoints you as Guardian of your loved one, you do not have unfettered rights to your loved one’s assets, income and health care decisions.  If the Guardian wishes to sell any of the incompetent person’s property, the Guardian must make an application to the Court to do so.  Similarly, Court approval is necessary if the Guardian seeks to gift assets for the purpose of estate or Medicaid planning. (NJSA 3B:12-49,  3B:12-58 and 3B:12-59).

 

  1. Filing of Reports

The Guardian must complete several reports each year, beginning with an initial Inventory of Assets.  This initial inventory is usually due within seven (7) to thirty (30) days of the appointment.  Further, each year, the Guardian must complete a Report of Well Being of the incompetent person and must also complete an Accounting of all funds that the Guardian has handled during the year, all income received, and all expenses that the Guardian has paid.  Both of these annual reports are submitted to the Surrogate Court of the County that decided the Guardianship Application.  If the Court has any questions regarding the reports, the Guardian may have to provide supplemental information.
 2.    Commission
A Guardian may receive monetary compensation for his or her work as Guardian.    The commission amounts are set forth in NJSA 3B:18-24 and 3B:18-25.  Presuming the incompetent person has assets and income, the Guardian is entitled to the following commissions on an annual basis without prior court approval:

  1. Six percent (6%) on the income received on behalf of the incompetent person, and
  2.  $5.00 for each $1,000.00 of principal corpus for the first $400,000.00, and $3.00 for each $1,000.00 of principal corpus on amounts exceeding $400,000.00.

Therefore, by way of example only, if the incompetent person has assets totaling $1,000,000.00, and receives $100,000.00 worth of income in a year, the Guardian is statutorily entitled to $3,800.00 on the principal and $6,000.00 on the income for a total annual commission of $9,800.00.

​The Guardian may also receive a termination/distribution commission.  The amount of the termination/distribution commission is based, in part, not only upon the value of the assets, but also upon the length of time the Guardian has acted as Guardian when the termination or distribution occurs.  These termination commission amounts are set forth in NJSA 3B:18-28.

D. CONCLUSION
Being appointed a Guardian for your loved one imposes certain record-keeping and report filing requirements.  Once you are appointed Guardian, the court involvement in your loved one’s estate does not end.  While the Guardianship application process is concluded, the Court oversight begins.  This Court oversight continues until the Guardianship is terminated.

The best way to reduce the expenses associated with a Guardianship is to discuss and finalize your estate plans, long term care plans and Power of Attorney preferences with a knowledgeable attorney while you are still mentally competent and can make those decisions on your own.  As our society ages and as the law continues to recognize the independent legal rights of “children” once they reach eighteen (18) years of age, the need for Powers of Attorney and Guardianships is becoming increasingly important.  Having a Power of Attorney or estate plan is no longer limited to the rich and famous or elderly; even college-aged children should consider having Powers of Attorney in place. If there are questions regarding your or a loved one’s mental competency to sign a Power of Attorney, ask your family physician or neurologist to perform a competency exam such as the mini mental status exam.

If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Navigating the maze of Guardianship applications on your own can be both confusing and overwhelming.  Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  This may cause tension and misunderstandings between you and your loved one if you make the application on your own.  Having an attorney to prepare the Guardianship application and to guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings.

If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact Bathgate, Wegener & Wolf, P.C. at 732-363-0666 to discuss your and your loved one’s legal options.

Photo by Luwadlin Bosman on Unsplash

Jury Rules Against Home Improvement Contractor Over Sandy Contract

Posted on | by LawFirm
Nearly four years after Superstorm Sandy made landfall in Ocean County, NJ, a jury has rendered its first verdict in favor of  homeowners against a home improvement contractor repairing Sandy damage.  In August, an Ocean County jury sided with the homeowners in their suit against Price Homes Group (PHG).  PHG was a fledgling home building contractor that, like many others, spawned in the aftermath of Superstorm Sandy.  The entity was formed 100 days after the most powerful storm to affect the Jersey coast made landfall.  The storm caused billions of dollars in property damage as a result of wind and flood.  Despite being newly formed, PHG enjoyed the illustrious status of being a “qualified builder” under the State’s RREM (Reconstruction, Rehabilitation, Elevation and Mitigation) Program administered by the Department of Community Affairs (DCA). Under the RREM Program, the DCA checked whether a contractor was a registered Home Improvement Contractor licensed to do business in New Jersey, and whether it had been debarred from doing business with the government.  By now many have heard horror stories of the RREM program.  RREM later allowed homeowners receiving such grants to select their own contractors.  Sadly, in spite of a trial victory for the homeowners, whether they will ever see any of the $300,000 in damages awarded against PHG remains to be seen.  The three principals of the company have declared bankruptcy and PHG vows to appeal the verdict.  There are at least fifteen other such suits against PHG.

Whether embarking on a home improvement project as a result of Sandy or otherwise, the lessons of the PHG experience are apparent to homeowners and contractors alike.  As shocking as it may seem, many enter into home improvement projects, often as big or bigger than the home purchase itself, without a written contract that identifies the scope, cost and timing of such a project, and do so without checking to see whether a contractor is a registered Home Improvement Contractor. The NJ Consumer Fraud Act (CFA) requires that any residential home improvement agreement over $500 must be in writing, as well as any change orders, and include:

  • Start and completion date
  • Agreed price
  • Contractor’s HIC number
  • Three day right to rescind with full return of deposit
  • Copy of Contractor’s general liability insurance declarations page
  • The toll-free number of the NJ Division of Consumer Affairs.
A contractor that fails to comply with the CFA runs the risk of exposing itself to a consumer fraud action, in addition to the standard breach of contract action by a homeowner that the work does not meet the terms of the contract and is not completed in a workmanlike manner, and/or consistent with applicable building codes.  Any contractor found to have caused an ascertainable loss as a result of a “deceptive business practice” and to comply with the Act’s requirements, runs the risk of not only damages for  the costs of repairs to properly complete the project, but also treble (tripling of) damages, attorney’s fees and costs of suit.  There is New Jersey case law that further allows such damages to be assessed against the principals or officers of a corporation (“pierce the corporate veil”) if actual participation in such deceptive business practice by the principal or corporate officer is shown.  While budgets may be strained by any contemplated home improvement project, it behooves a homeowner to have a consultation with a qualified attorney before blindly wading into the treacherous waters of home improvement.  If you earn your living as a New Jersey Home Improvement Contractor, you must be aware of your legal obligations. You must register with the Division of Consumer Affairs consistent with the Contractor Registration Act and be sure your contracts are Consumer Fraud Act compliant, otherwise your next project may be “on the house”.  A home improvement contract that fails to comply with the CFA is deemed void and the contractor’s only right to receive compensation for such work and materials is the value of such services and materials provided (quantum meruit) without any profit.  It has been held that even quantum meruit recovery is questionable because the purposes of the CFA are to punish the wrongdoer and deter others from such conduct.Brian McAlindin, Esq. is a Partner at Bathgate, Wegener & Wolf, PC and a Certified Civil Trial Attorney with expertise in construction litigation on behalf of both homeowners and contractors, as well as personal injury actions.

What Is Guardianship In New Jersey and How Does It Work – Part 2 of 3

Posted on | by LawFirm
​In Part 1 of this series, we looked at four different scenarios when a Power of Attorney or Guardianship might be appropriate.  We also looked at the basic requirements to begin a Guardianship application to the Court.  In Part 2 of this 3 part series What Is Guardianship In New Jersey and How Does It Work, we discuss what will happen at the court hearing.

THE HEARING
 A.        Notice of Hearing Date
Approximately 2 weeks after the application to have your loved one declared incompetent is submitted, the Court will set a date for the initial hearing. Once the initial hearing is scheduled, the person who seeks to be appointed as the Guardian must notify the alleged incompetent, his or her next of kin and anyone else who has a degree of relationship superior to that of the applicant of the date and time of the hearing, and the person’s ability to challenge the application.  In certain circumstances, the Office of Public Guardian must also be notified of the application and given an opportunity to review and respond to it.  The next of kin or other interested party may hire an attorney to represent their interests in the application or they may represent themselves, pro se.  The next of kin or interested party is permitted to challenge both  the requested declaration that your loved one is  mentally incompetent and your appointment as Guardian.  Because your loved one will receive a copy of the filed papers, your loved one will be advised not only that there is a request to have him or her  declared mentally incompetent, but also of the name(s) of the person(s) seeking Guardianship. 

B.        Appointment of Temporary Guardian
On occasion, the Court will appoint a Temporary Guardian for your loved one while the Guardianship application is pending.  The Temporary Guardian serves until the Court makes its final determination regarding a permanent Guardian.  The Temporary Guardian can be the person(s) submitting the application for Guardianship, or it can be someone else selected by the Court.  If the Court does not appoint the applicant as the Temporary Guardian, the Court may appoint an attorney (separate from the court appointed attorney who will represent your loved one in the Guardianship application process) or an accountant or other professional as the Temporary Guardian. The fees charged by the Temporary Guardian are usually paid from your loved one’s assets.

C.        Court Appointed Attorney For Alleged Incompetent Person
The Court will appoint an attorney to represent your loved one.  The Court appointed attorney is not free.  He or she is usually paid from the assets of the alleged incompetent.  This attorney will not only present your loved one with a copy of the papers submitted to the court, but will also spend some time with your loved one, interview him or her, will likely interview the guardian applicant, and will research whether your loved one previously signed a Power of Attorney or a Last Will and Testament.  Once the Court appointed attorney’s research and interviews are complete, she will submit a report of recommendations to the Judge.  Although the court appointed attorney represents your loved one, your loved one may hire his or her own private attorney at your loved one’s own expense to represent his interests and challenge a Guardianship application.

D.        Conduct of the Hearing
If the Guardianship Application is not contested and the Court appointed attorney agrees with the Application, then the Court may not require anyone to be present at the hearing and the Judge  will make his decision based upon the papers presented to him.  However, if the Guardianship Application is contested, during the initial hearing the Judge will consider:  (a) the written papers submitted to it that support and oppose the Guardianship, and (b) oral arguments (but not witness testimony) regarding the Guardianship Application.  Usually, live witness testimony is not presented to the Court during the initial hearing.  In both contested and uncontested Guardianship Applications, the Court will review and consider the observations and recommendations of the court appointed attorney.  Sometimes, the Court decides that it does not have enough information to make an immediate determination on the Guardianship application.  If that is the case, the Court will schedule another hearing and may request that additional information be submitted to the Court.  At the second hearing, the Court may hear sworn testimony from (a) the person alleged to be incompetent, (b) the person applying to be the Guardian of the alleged incompetent, (c) the physicians, psychologist or psychiatrist who conducted examinations of the alleged incompetent, and (d) any other persons with an interest in the application or who have information regarding the alleged incompetent.  Only after receiving all the information, evidence and testimony that the Court deems necessary and appropriate, will the Judge decide whether your loved one needs to have a Guardian appointed, and if so, who will be appointed the Guardian.

E.        Bond Amount
In addition to deciding whether your loved one is mentally incapacitated and who should serve as Guardian, the Court will also decide the amount of the bond, i.e.,  insurance policy, that must be obtained by the person appointed as Guardian.  The amount of the bond is generally based upon the value of the assets of your loved one.  The bond is obtained by the potential Guardian, usually after a general background check, credit check and payment of a bond premium.  The bond premium must be paid every year, and usually can be paid from the incompetent person’s assets.

F.        Conclusion
If your loved one does not have the mental capacity to sign a Power of Attorney, all is not lost.  An alternative to the Power of Attorney is a Guardianship for your loved one.  A Guardianship requires an action in court and physician/psychologist certifications. Because the Guardianship process requires a Complaint being filed with the Court,  a copy of the Complaint will be provided to your loved one over whom you seek Guardianship.  Additionally, the next of kin of the alleged incapacitated person, along with those person(s) who have a degree of relationship superior to the applicant requesting to be appointed as Guardian must receive notice of the application.  This may cause tension and misunderstandings between you and your loved ones if you make the application on your own.  Only after a Judge is confident that he or she has received and reviewed all of the evidence and testimony necessary to make a determination regarding your loved one’s mental competency and appropriateness of a Guardianship will a judge make his or her ruling. If a Guardianship is granted, that ruling will include a Judgment of Legal Incapacity, the name of the person appointed as Guardian and the amount of bond that will need to be secured before the appointment of the Guardian can be finalized.   Having an attorney prepare the Guardianship application and guide you through the Guardianship process can help reduce the confusion, sense of overwhelming, tension and misunderstandings that can accompany a Guardianship application.  In Part 3 of this 3 part series, we will discuss a Guardian’s duties after being appointed by the Court.

If you wish to have a Power of Attorney or other estate planning documents drafted, or if you are concerned about your loved one’s ability to manage his or her financial affairs, medical treatment, health care decisions and overall well-being, or if you just received a copy of a  guardianship application made by someone for your loved one, contact the law firm of Bathgate, Wegener & Wolf, P.C.  to discuss your and your loved one’s legal options at 732-363-0666.

Photo by Luwadlin Bosman on Unsplash
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