Addressing the Needs of Older Adults and Those with Special Needs
Contact us for a free telephone consultation at 609-303-0270
Our view is rather simple. Where others see problems, we see people in need of help and guidance. . . . Where others see conflict, we see the potential for generating options and viable alternatives. . . . Where others see divisiveness, we see the opportunity for reconciliation and improving the lives of our clients.
History teaches us, and your own experiences confirm, that not everything is "black and white" and that most issues, legal included, have many nuances and often fall within the gray area. The members of SerraWeiss are comfortable navigating through these gray areas, even though all possible resolutions to your issue may not be readily apparent. We have the patience and open mindedness to explore and lay out all possible options, including litigation but also alternative dispute mechanisms such as mediation and arbitration, as a path to the resolution of your issue. Why choose a firm that lacks these qualities?
SerraWeiss is a law and mediation practice committed to creating and implementing innovative solutions in a spirit of genuine partnership. Your concerns are not simply our professional responsibility, but our passion.
Nina E. Weiss received her law degree from Fordham University School of Law, New York, New York and is a graduate of Binghamton University. She is the former Associate Counsel to the New Jersey Office of the Public Guardian for Elderly Adults and a former Legal Specialist with the Office of the Commissioner of the New Jersey Department of Health and Senior Services. Nina is a professional mediator and is on the roster of court approved mediators administered by the New Jersey Administrative Office of the Courts. Nina is also a member of the District VII Ethics Committee. She has previously served as a member of the Advisory Committee on Supportive Housing through the Real Life Choices Program of the Division of Developmental Disabilities. Nina also serves as the Chairperson of the Mercer County Bar Association Chancery Bench Bar Committee. Nina has served as court appointed attorney and/or guardian ad litem in many complex guardianship and general equity matters. Nina resides with her family in Bucks County, Pennsylvania.
Anthony J. Serra received his law degree from Seton Hall University School of Law, Newark, New Jersey, graduating Magna Cum Laude, and is a graduate of Drew University. He is the former General Counsel to the New Jersey Office of the Public Guardian for Elderly Adults and is a Registered Guardian under the auspices of the National Guardianship Association. Tony is a professional mediator and is on the roster of court approved mediators administered by the New Jersey Administrative Office of the Courts. Tony received specialized Adult Guardianship/Family Caregiver mediation training though the Center for Social Gerontology in Ann Arbor, Michigan. To learn more about the Center, you may visit www.tcsg.org . Tony is a co-founder and a member of the Board of Trustees of Volunteer Guardianship One on One, Inc., a non-profit organization devoted to recruiting, training and supporting volunteer guardians. For more information, you may go to www.VolunteerGuardianship.org . Tony resides with his family in Hunterdon County, New Jersey.
What is Mediation?
Mediation is facilitated negotiation. It is a process by which a neutral third party, the mediator, assists individuals in reaching a mutually satisfactory resolution of a dispute. The goal of the process is for the individuals involved in the dispute to arrive at a mutually acceptable resolution, rather than for a disinterested person who knows little about the history of the dispute and the relationship between the individuals (i.e. a judge) to do so. The beauty of mediation is the empowerment of the individuals and the ability to vent and to be heard in a non-judgmental forum. When choosing mediation as an alternative to litigation, it is critical to select a mediator who is patient, compassionate, non-judgmental and experienced in the subject matter of the dispute. This way the mediator can carefully listen to the individuals, be empathetic to their situations and be able to generate several creative options for an acceptable resolution of the dispute. We at SerraWeiss are committed to the propriety of mediation as a meaningful alternative to the litigation process and as a legitimate forum for the resolution of disputes and are committed to empowering individuals to control their own destiny and, with our assistance, to ultimately reach a resolution acceptable to all.
Why Mediation?
So why choose mediation over litigation in order to resolve your dispute? The reasons are many: You control the result; mediation allows for creativity in solutions; mediation is less costly than litigation (both financially and emotionally); mediation is confidential; mediation permits people to openly vent their frustrations and to discuss many issues that they may have; even if the mediation is unsuccessful, your legal positions are preserved, thus there is no downside to attempting mediation; mediation allows for flexibility in scheduling; you can choose your own mediator but you cannot choose your judge; mediation allows for the preservation of relationships (as opposed to the erosion of relationships) if this is what you desire. Ultimately mediation can be an extremely effective and compassionate approach to resolving disputes and should be meaningfully explored as a viable alternative to the litigation process. The bottom line is that mediation allows you to control the outcome of the conflict rather than leaving it to chance in the court system.
Will Contests
Quite often, families find themselves in conflict over the estate of a parent or loved one who has died. Such claims can involve allegations that the will is invalid either because the person was mentally impaired at the time the will was executed or that the person was unduly influenced to leave a larger portion of his or her estate to a particular person. There may also be claims of fraud and deceit. These types of cases can be especially difficult since they may involve long standing conflict between siblings and others as well as strong emotional feelings of loss, rejection and resentment. Litigating these types of cases can have the real potential of adding to the familial conflict and polarizing the family even further. As is true in other family matters, mediation in which all interested parties agree to meet with a neutral third party to discuss possible avenues of settlement can be an effective why to resolve issues surrounding Will Contests. Such an approach affords everyone the opportunity to be heard and to collectively fashion an outcome that is certain and fair to all parties, thereby eliminating the risk and costs associated with having a trial.
Family Disputes
It is widely accepted that mediation is a viable and even exceptional alternative to the litigation process when you are embroiled in a dispute with family. This is because, for better or for worse, this is your family and there may be a need or a desire for an ongoing relationship into the future. Litigation may drive the family further apart while through mediation the family will come together, at one table, for an open discussion of the dispute and a mutual search for possible avenues of resolution. Such family disputes can arise with regards to gifts made from a parent to one child and not the other and allegations of undue influence, alleged breaches of fiduciary duty by one child who is serving as power of attorney for an aging parent or disputes over the best care for an aging parent. These are just a few examples of the myriad of family disputes which can and often do arise. In the spirit of keeping the family together, many individuals choose mediation rather than resorting to litigation in order to resolve such disputes. We at SerraWeiss are able to mediate such disputes in a non-judgmental forum where the individuals will be able to address their issues, including perhaps underlying issues within the family, towards the ultimate purpose of arriving at a reasonable resolution while maintaining the family in tact.
Guardianship Mediation
It's not unusual for a family to feel overwhelmed when an aging parent or grandparent is no longer able to manage completely on their own and needs the assistance of others. With our busy lives, most families have done little if anything to plan for such an occurrence and the initial response is typically more reactive than deliberative. When an aging family member is experiencing diminished mental capacity and can no longer make decisions for themselves, this can spawn familial conflict over what to do, how best to care for the person, where the person should live and who should make the decisions. Many times, these conflicts will lead to the filing of a guardianship case where the principle focus will be on whether and who should be guardian, not how best to accommodate the person in need. As a viable alternative to guardianship litigation, mediation with a neutral third party affords the entire family the opportunity to refocus their attention on the question of "need" in arriving at a comprehensive plan of care. In addition, guardianship mediation is a dignified approach to maximizing a person's right of self-determination and autonomy and ensuring that all parties, including the person in need, are heard and have a voice.
The attorneys at SerraWeiss have a great deal of experience in guardianship cases, both in the private and public sectors, and take a compassionate approach in working in this area. We are therefore very equipped to mediate these emotional and difficult conflicts.
Special Needs Trust
Individuals living with disabilities are often entitled to government benefits such as Supplemental Security Income (SSI) and Medicaid. These are means based programs meaning that the individual receiving such benefits must have limited assets in order to be eligible to receive these benefits, generally $2,000 or less. Because of this, it used to be the custom for parents to effectively disinherit their disabled children for fear that if they left funds to their children upon their death, they would lose their extremely valuable government entitlements. However, this is no longer the case. In 1993, in an effort to afford equal protection under the law to individuals with disabilities, the Federal Congress passed a law that is known as OBRA 93. That law created an exception to the above scenario. It is now permissible for an individual receiving government entitlements due to disability that are means based to hold money in what is known as a Special Needs or Supplemental Benefits Trust. The money being held in trust may be used to enhance the individuals quality of life. For example, the money can be used to purchase computer equipment, an accessible van, to retain a private care manager, for vacations and the like. People can fund these trusts through their wills or through lifetime gifts. These trusts are also often a repository for personal injury/medical malpractice settlements. A Special Needs Trust is an essential part of planning for parents who having children with disabilities. Our members are experienced in working with families and attorneys in ensuring the preservation of government entitlements through the use of these trusts.
Guardianships
Although guardianship inherently involves a deprivation of rights and the vesting of decision making authority into another individual, if imposed in the least restrictive way, a guardianship has the potential to be life enhancing for the individual in need. Plenary or Full Guardianship is one of the most restrictive forms of surrogate decision-making and as such, should be employed when less restrictive alternatives have been exhausted. Naturally if the client perceives that Guardianship is the appropriate arrangement for the individual in need, our firm is prepared to guide the client through the process with sensitivity and with a deep understanding of the law. The members of our firm are very experienced in both uncontested guardianships, where all individuals involved agree with the guardianship petition, and in contested guardianships, where either the person alleged to be in need of a guardian contests or where another interested party may contest.
Conservatorships
A conservatorship is the voluntary appointment of a court-sanctioned fiduciary. Although the person must have some need, by its very nature, the conservatee must have sufficient mental capacity to ask the court for a conservator to be appointed for them. Conservatorships are primarily used for the management of financial affairs. Conservatorships are quite effective when there are potential outside influences on the individual that could become undue or coercive. A conservatorship offers the additional protection and oversight of the court, which some situations may need. The conservator is accountable to the court for his or her actions. Conservatorship is also a very viable and less restrictive alternative to the appointment of a guardian of the property. Our firm is very experienced in the law of conservatorships and our members have successfully petitioned the court for conservatorship on behalf of a proposed conservatee and have also successfully advocated to have a conservatorship established as a lesser restrictive and viable alternative to a guardianship.
Estate Planning
When we think of Estate Planning, we tend to think of Wills and what will happen to our estate when we die. A Will, of course, is important for distributing your estate amongst your named heirs and beneficiaries, as well as for minimizing estate taxes and naming guardians and trustees for your minor children. Usually little, if any, attention is paid to what might happen if we become disabled and no longer able to act for ourselves. Yet, if we should become disabled and unable to act for ourselves, the question of who will make decisions for us and what those decisions might be will become vitally important in terms of what our quality of life will be in the future. It is for this reason that a sound estate plan should take into account not only a properly prepared and thought out Last Will and Testament, but also a Durable Power of Attorney and Living Will (Advance Medical Directive). These three documents are very important and together constitute an integral part of your overall estate plan. The attorneys at SerraWeiss have extensive experience preparing all three documents and are happy to work with you in making sure the right estate plan is in place according to your particular situation.
Care Planning
It is true that no one can truly understand what it is like to parent a child with special needs. While all parents innately desire to protect their children, a parent of a special needs child necessarily feels a need to protect to an even greater degree. Therefore, the great challenge for such parents is to protect on the one hand but at the same time afford their disabled children opportunities for growth, freedom of expression and freedom of choice. It is this paradox that necessitates that these parents carefully plan for their childrens futures. Part of such a plan is the creation of a Special Needs Trust, the establishment of an appropriate and least restrictive surrogate decision making arrangement (perhaps a Limited Guardianship) and the development of a Personal Life Plan which may set forth the unique characteristics, abilities and needs of that child along with various housing options for the childs adult years. The members of our firm are committed to compassionately working with families and their children in arriving at an overall plan that strikes the proper balance between protection on the one hand and autonomy and self-determination on the other.
The members of SerraWeiss have published "Surrogate Decision Making...A Roadmap to Making Decisions for Those with Diminished Capacity." This comprehensive manual was prepared specifically for individuals with disabilities and their families. The manual addresses the various options for surrogate decision making fundamentally from a civil rights perspective. Such topics discussed are "A Surrogate Does not Always Mean A Guardian" and "Limited Guardianships," including case studies of limited guardianship. We have received a very positive response from the disability community at large, from both professionals working with families and individuals, as well as from consumers themselves. If you would like a complementary copy of this manual, you can e-mail us at nina_serraweiss.com or tony_serraweiss.com or you can call 609-303-0270.
The E-Navigator Newsletter shall return in March, 2012. Check back here for our new look! You will not be disappointed.
Please contact our offices to inquire about our acclaimed seminar, "Family Matters Family Solutions: Mediating Contested Probate and Guardianship Matters."
2/15/2012: Tony and Nina are teaming with the Family Resource Network in presenting a guardianship webinar. Click here to register.
3/22/2012: Chancery Bench Bar meeting with Honorable Mary Jacobson of the Superior Court of New Jersey.
April, 2012: The Center of Guardianship Studies, an initiative of Volunteer Guardianship One on One, Inc., is presenting a five course seminar exploring the legal, medical, financial, social and ethical aspects of guardianship. Please visit the 1 on 1 website for more information.
11/1/2012: Tony has been selected as the co-chair for the 17th annual Guardianship Association of New Jersey conference. For more information, visit the GANJI website.
From the daughter of a client, for whom Nina was appointed by the court:
Nina,
It was also a pleasure for us to meet you on Monday. Thank you so much for everything you have done on our mother's behalf. To be honest, you were exactly the type of person we had been looking for when we had tried to secure an attorney/advocate for her several months ago.
After the hearing, I went down to Tallwoods to see mom and found that she was happy, animated and more like herself. It was definitely a good day for her. She was quite happy with the outcome, especially with the fact that her grandson would be caring for her as she feels he has a good heart, is very close to her and would make his decisions based on her wishes and what is in her best interest.
Thank you again.
From a client:
Dear Nina,
Thank you for your ability to not only understand all of the issues that surround our case but for your ability to explain it so well.
We feel confident that with your help everything will turn out OK according to the way the law has prescribed.
Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Fusce tempor arcu ac urna. Fusce congue eleifend mi. Pellentesque metus sem, elementum eu, rhoncus sed, gravida sit amet, nulla. Lorem ipsum dolor sit amet, consectetuer adipiscing elit. Aenean condimentum, odio quis pharetra dignissim, diam nisl dignissim diam, eu interdum magna erat sit amet felis. Etiam non felis at urna tempus luctus. In ullamcorper nisl congue elit. In convallis nibh vitae justo. Quisque ac lectus vitae sem consequat sagittis. Donec turpis nisi, feugiat sollicitudin, fermentum vitae, volutpat sed, ligula.
1 Tree Farm Road, Suite 202
Pennington, New Jersey 08534
Phone: 609.303.0270
Fax: 609.303.0269
Newsletter, Vol. 5, Issue 1, Summer 2005
For more information, you may go to www.VolunteerGuardianship.org. Tony resides with his family in Hunterdon County, New Jersey.
