Disabilities and Elder Law

January 18, 2019 by Rebecca Esmi

Fiduciary — does this apply to you?

Many of us mistakenly believe the term “fiduciary” only pertains to certain financial advisors, but this misconception could lead to grave legal consequences because the term describes a number of important roles in which an individual (or corporation) has powers and duties pertaining to the property — and even the person — of another.

A definition of “fiduciary” includes those who administer another’s property such as trustees, personal representatives of an estate (executors and administrators), guardians, conservators, partners, agents and attorneys-in-fact, corporate officers, or “any other person, trust or estate” serving in a fiduciary capacity. See Uniform Fiduciaries Act (N.J.S.A. 3B:14-53(b). A fiduciary is held to a high legal standard in that he or she must put the interests of the “other” before his or her own. Breaching these duties subjects a fiduciary to civil and even criminal claims, depending upon the severity of the acts and/or omissions.

A prudent course of action prior to accepting a fiduciary position may be to seek legal counsel, with the watch-word being “prior”. However, prudence also suggests seeking legal counsel is advisable even after accepting such an appointment, so that you can be sure you are meeting your duties and obligations.

December 13, 2018 by Rebecca Esmi

The importance of managing stress — especially during the holidays

This article is provided in the hopes it will help our readers – and particularly those who are caregiver to another — reduce stress during what can be a stressful period: the holidays. So why is “destressing” important at all? Afterall, stress is the body’s “fight-or-flight” response to a trigger that causes key hormones such as adrenaline to be released, and is essential to health when in response to a one-off danger. However, it is chronic stress which causes the adverse effects we seek to address, which results in part from the long-term impact of the hormone cortisol. The good news is that most of us can employ various tactics to reduce chronic stress. Any person feeling overwhelmed or experiencing self-injurious thoughts should of course contact their mental health care provider immediately.

Now, on to practical tips. Begin by focusing on the basics: get enough sleep and regular exercise and eat right. The holidays tend to be a time for over-eating due to the presence of seasonal goodies, both those received and those we make ourselves. Remember skimping at breakfast will only cause us to be ravenous later, likely leading to overeating. Be sure that your fridge is stocked with healthy foods. It also helps to begin a meal or cocktail party by drinking a glass of water, drinking another water or seltzer between cocktails, and drink wine spritzers (equal halves seltzer and wine).

Second, minimize anxiety, which arises from needless worry over unpredictable anticipated future events. One way to mitigate against anxiety is through mindfulness. Mindfulness occurs when we stop and smell the roses by appreciating the here and now, by taking some deep breaths when we encounter holiday chaos swirling around us, or perhaps through meditation. Another way to reduce anxiety is to learn to say “no” thereby keeping schedules and resources within reason.

Finally, forget about being Superwoman (or Superman). Studies show that certain groups are particularly prone to holiday stress. The American Psychological Association’s survey shows women feel more stressed during the holidays than men. Women are more inclined to resort to unhealthy practices as a means to combat stress, such as over-eating, which of course gives only temporary relief.
Another group that can be particularly prone to the long-term effects of chronic stress is caregivers. One trigger is worry about what will happen if the caregiver becomes temporarily sick, has a short-term hospital stay, or suffers a severe medical problem that has long-lasting effects. Who would take care of the person dependent upon the caregiver in these three scenarios? We urge each caregiver to make arrangements to cover each of these three scenarios. Setting a contingency plan in place will give the caregiver some much-needed peace of mind, knowing there is a safety net ready to spring into action. Also, make sure you have prescription copies, contact lists, and written instructions about the daily care of and routines of the dependent person, for the successor caregiver. Contingency-plans made in advance also increases the likelihood that the substitute caregiver will be someone already-known by and familiar with the dependent person. Another worthwhile consideration is to explore area facilities as some will provide temporary respite care.

Even during the best of times, it is also essential that each caregiver not go the course alone, but instead receive help and support from others – to include periodic respite visits. Other tips include ensuring self-care as a priority and to join a caregiver support group, in person or online.

In closing, warm wishes from all of us here at McNeely McGuigan & Esmi LLC for health and peace — especially important during the holiday season. If you wish to read more, several resources are included below.

Additional resources:
The National Institutes of Health (NIMH), 5 things you should know about stress: https://www.nimh.nih.gov/health/publications/stress/index.shtml
The American Psychological Society, survey on stress: https://www.apa.org/news/press/releases/2006/12/holiday-stress.pdf
Mace, Nancy L., MA, and Peter V. Rabins, MD, MPH, The 36-Hour Day: A Family Guide to Caring for People Who Have Alzheimer Disease, Other Dementias, and Memory Loss, 6th Ed., 2017 Johns Hopkins University Press.
AARP, 10 Tips for Caregivers During the Holidays, Amy Goyer, November 19, 2018. https://www.aarp.org/caregiving/life-balance/info-2018/holiday-stress-tips.html

April 23, 2012 by Rebecca Esmi

Revocation of a POA

A principal may revoke a POA at any time by employing one of three methods. First, the principal may physically destroy all executed originals. Second, he or she can sign and acknowledge a written revocation (per R. S. 46:14-2.1). Finally, the principal may revoke by notice to the attorney in fact.

It should be noted that simply appointing another in a later POA does not in itself revoke an earlier POA, unless the subsequent POA expressly provides. N.J.S.A. 46:2B-8.10.

Prudence dictates that the principal maintain a list of the person or people to whom an original has been given.

April 23, 2012 by Rebecca Esmi

And now…. about those powers

New Jersey law does not specify powers conferred by default. Prudence therefore dictates that all powers required be included.

Special attention should be paid each and every power which must be included, but special-special mention must be made of gifts and banking.

(1) Gifts. The power to gift could be controversial as potentially anti-fiduciary; however, it is a mighty sword in the estate planning arena as a means of mitigating taxes. In order for the I.R.S. to acknowledge a transfer as a gift made pursuant to a POA, the POA must specifically authorize the attorney in fact to make gifts on the principal’s behalf. While there are potential exceptions, they are limited; further, courts in particular construe POA language strictly.

(2) Banking. All the statutorily-provided banking powers set forth in N.J.S.A. 46:2B-10 et seq. are incorporated by reference into the POA simply by including the required language: “conduct banking transactions as set forth in Section 2 of P.L. 1991, C. 95 (C.46:2B-11).”

The statute also delivers several other benefits. If the attorney in fact is a spouse or blood-relative of the principal, there is no expiration date. If the attorney in fact is neither, then a ten-year stale-date period applies. N.J.S.A. 46:2B-13(b). It also provides that the bank may retain a POA copy, so long as it has seen the original. In the alternative, the bank must accept an affidavit from the attorney in fact stating that the original is unavailable along with a certified copy.

April 23, 2012 by Rebecca Esmi

The Attorney in Fact as a Fiduciary

A fiduciary has very big shoes to fill. A fiduciary must put the principal first. In other words, the Attorney in fact must put the principal before him- or herself at all times, despite any temptation or self-interest. The Attorney in fact must while acting as fiduciary ensure that actions undertaken are authorized by the POA. See N.J.S.A. 46:2B-8.13(a).

An Accounting is a report of financial transactions. An Attorney in fact is required to provide an Accounting upon demand, pursuant to N.J.S.A. 46:2B-8.13(b). Thus, each Attorney in fact is required to maintain a record of all the various and sundry transactions undertaken on the principal’s behalf, pursuant to N.J.S.A. 46:2B-8.13(b). An Attorney in fact would be well-advised to retain the record many years since questions could arise years later. A whole cast of characters can demand an Accounting; to name several of the most common: The Principal, guardian of the principal (if the principal is adjudicated incapacitated), personal representative, beneficiaries, and heirs of the principal’s estate.