Ken Vercammen's NJ Laws email newsletter April 27, 2003 #124 In this issue: 1. WHAT TO DO WHEN YOU RECEIVE A POWER OF ATTORNEY 2. USE SELF PROVING WILLS TO SPEED UP PROBATE 3 Underage injured drinker Can Still Bring Civil Suit v. Social Host. ________ 1. WHAT TO DO WHEN YOU RECEIVE A POWER OF ATTORNEY A Power of Attorney is an appointment of another person as one's agent. A Power of Attorney creates a principal-agent relationship. The grantor of the Power of Attorney is the principal. The person to whom the Power of Attorney is given is the agent. We give the title "attorney-in-fact" to the agent who is given a Power of Attorney. As attorney-in-fact, you have all of the powers which are set out in the attached Power of Attorney. If you ever have any questions regarding the powers under this Power of Attorney, please examine that document first. Whenever you exercise any one or more of your powers under this Power of Attorney by signing a document, you should always sign your name as follows: " [your name] , as attorney-in-fact for [name of other person] " Naturally, you need not use the quotation marks. Powers of Attorney are generally given by one person to another so that if the grantor of the power becomes ill or incapacitated, the Power of Attorney will permit the holder of it to pay the grantor's bills and to handle the grantor's affairs during the inability of the grantor to do the same. In other words, the Power of Attorney will remain effective until 1) a Court declares the giver of the power to be incompetent or 2) the giver of the power dies. When either of the foregoing events occurs, your Power of Attorney will thereupon become void and you may not perform any of your powers under it -- and if you do, those acts will be void. Naturally, upon your death, the Power of Attorney becomes void. Your Power of Attorney is also revocable. If it is revoked, your power to act under it ends, and you cannot act under it thereafter. As the attorney-in-fact, you do not become the owner of their property. The Power of Attorney merely grants to you as their attorney-in-fact the powers enumerated in the Power of Attorney, however, those powers may include the power to deal with the property of the principal. Because you have been entrusted with these powers by your principal, you must take great care to exercise those powers for the benefit of your principal only and not for your own benefit. If anyone ever questions you when you exercise your powers under the Power of Attorney, please be sure to show such person a copy of your Power of Attorney. I do not recommend that you not give them the original signed Power of Attorney, however, you may give them a photo-copy of it. If you record the Power of Attorney, you may, of course, secure certified copies of it from the County Clerk. Compiled by Kenneth A. Vercammen, Esq. from various sources 2. USE SELF PROVING WILLS TO SPEED UP PROBATE Prior to 1978, New Jersey Probate Rules required one of the two witnesses to a will to travel and appear in the surrogate¹s office and sign a paper to certify they were a witness. This often created problems when the witness was deceased, moved away, or simply could not be located. Some witnesses would require a $500 fee to simply sign a surrogate paper. In 1978, the New Jersey Legislature passed a law to create a new type of will called a ³Self-Proving Will.² In such a will, the person for whom the will is made will sign. Then two witnesses sign. Then the attorney or notary must sign; with certain statutory language to indicate the will is self proving. When done properly, the execution will not have to locate any witnesses. This usually saves time and money. If your will is not ³self-proving² or if you are unsure, schedule an appointment with an elder law attorney. ___________________ 3 Underage injured drinker Can Still Bring Civil Suit v. Social Host. Camp v. Lummino et al. ___ NJ Super. ___ A-2530-01T5 (App. Div. June 28, 2002). N.J.S.A. 2A:15-5.6 does not prohibit a suit by an underage drinker against a social host and N.J.S.A. 39:6A-4.5 (b), part of an act designed to reduce automobile-insurance fraud and thus reduce the cost of auto insurance, does not affect the right of an injured driver who is under the legal drinking age (or a third party injured by that driver) to bring an action against a host who illegally served the driver intoxicating beverages, since, by depriving anyone convicted of drunk driving in connection with an accident of a cause of action for losses sustained as a result of the accident, 39:6A-4.5 (b) only implicates losses that are subject to coverage under Title 39; the trial court correctly ruled that there was no reason to bar this common-law cause of action brought by plaintiff, who was in a one-car accident after driving away from defendant's party and has pleaded guilty to drunk driving. Although that conclusion makes it unnecessary to consider plaintiff's argument that N.J.S.A. 39:6A-4.5 (b) could not, in any event, be applied in this case because his guilty plea to driving while intoxicated was entered pursuant to R.7:6-2(a) (1), which made the acknowledgment of guilt non-evidential in any civil preceeding, nor is it necessary to consider the interaction of the rule and the statute, or whether the rule was designed to avoid a statutory bar to a cause of action, as opposed to the traditional admission of evidence in such an action; however, the question of whether the rule should be amended or revised to some degree as a matter of public policy, in light of the statute, is referred to the Municipal Court Practice Committee. Source: 169 N.J.L.J. 232 4 Public Employee Convicted of Offense That "Touches" Position Must Forfeit Job. State v. Williams ___ NJ Super. ___ A-2810-01T1 (App. Div. December 11, 2002). N.J.S.A. 2C:51-2a (2) requires a public employee who is convicted of an offense "involving or touching" that position to forfeit the position, and N.J.S.A. 2C:51-2d bars such person from holding any public position. The facts are set forth in State v. Williams, 168 N.J. 323 (2001), where the Supreme Court reversed defendant's second-degree conviction. Williams remained convicted only on a fourth-degree offense, and N.J.S.A. 2C:51-2a(1), which applies only to first-, second-, and third-degree offenses, no longer mandated the previously ordered forfeiture of his position as a Bayonne police officer. The motion judge granted defendant's motion to vacate the order of forfeiture, finding that the assault committed by defendant was not directly related to his performance as a police officer "as envisioned in McCann v. Clerk of City of Jersey City , 167 N.J. 311 (2002)." We disagree and reverse. By displaying his police badge to another driver and thus identifying himself as a police officer, Williams invoked the power vested in his position. ________________________ A Time to Unite... A Time to thank our servicemen God Bless our Military and their Families. United we stand, Divided we fall Thank you for reading our newsletter! God Bless America USA #1 Kenneth Vercammen (Phone) 732-906-2180 (Fax) 732-906-2155 website: www.njlaws.com Editor's Note and Disclaimer: All materials Copyright 2003. You may pass along the information on the NJ Laws Newsletter and website, provided the name and address of the Law Office is included. Always schedule an office appointment with an experienced attorney when you have a legal matter. The Rules of Court limit an attorney's ability to discuss matters over the phone. If you have legal questions, you should schedule an in- office consultation. 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