MCBA Fall 2023

Fall 2023

A Publication of the Mercer County Bar Association

Inside This Issue 2023 Awards Gala & GM Meeting……………..…………..….…..4 2023 Holiday Party & Toy Drive………………...………..…14 Thank you to MESP Panelists.......18 Call for District VII Fee Arbitration Committee Members..…………..19 Guardianship as a Tool of Last Resort……………………….…..22 LEAP Software Blog….….……...26

Upcoming Events Installation Dinner & GM Meeting February 8, 2024

Volume 42, Issue 4

From the President’s Desk…

Happy Holidays!

I hope all of you have been enjoying the festive season, and taking some time to relax with family and friends as 2023 winds to a close. The last few months have been very busy ones for the Mercer County Bar Association, as we launched into a whirlwind of activity to close out the year.

Certainly, one of the highlights of my term as president was our wonderful Awards Gala on October 27. I was delighted to honor Angelo Onofri with the Michael J. Nizolek Award, Art Sypek with the Harry O’Malley Award, and Anchor House with the Community Partner Award. The evening was a lovely and elegant occasion, and I am so thankful for the hard work of the MCBA staff in pulling off the event. It was the perfect opportunity to celebrate with colleagues, honor worthy recipients, and take some time to remember and reflect upon both Mike Nizolek and Harry O’Malley – two beloved members of the bar.

As always, Xtreme CLE was a remarkable success! We had robust participation in a wide variety of programs. There was wonderful participation from members of the judiciary on the panels. We were honored to welcome Attorney General Matthew Platkin. Overall, the event was a chance to exchange ideas and learn the newest facets of the law. Many thanks as always to Joe Paravecchia, Jennifer DowningMathis, and Ryan Moriarty for organizing the event.

Margaret A. Chipowsky, Esq. Finally, on December 7, we celebrated the holiday season together at the Chauncey Conference Center, and honored Judge Marbrey and Judge Massi on their retirements. We certainly will miss both of these judicial legends, so it was wonderful to have a chance to honor them and convey our thanks and best wishes.

As my term as MCBA President draws to a close, I have to reflect on not only the past year, but on my entire experience as a member, committee chair, trustee, and officer of this wonderful association – a total of 15 years. It has been a remarkable time. Though there were individual moments of difficulty and frustration, those times were far outweighed by the opportunities to learn and grow, and of course, by the wonderful friendships this organization has brought me.

I want to thank all of our members. Regardless of your level of involvement, this organization only exists because of your willingness to participate. Thank you for your enthusiasm, your ideas, and for your

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M e r c e r C o u n t y

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Volume 42, Issue 4

Officers Margaret A. Chipowsky President

609-815-7584

Jennifer Zoschak President–Elect

609-844-0488

Brian W. Shea Vice President

609-896-9060

Ross J. Switkes Treasurer

856-662-0700

Jennifer Downing-Mathis Secretary

609-610-6003

Trustees 2023 Jennifer Downing-Mathis Christopher L. Jackson Evan J. Lide Amanda E. Nini Lauren E. Scardella

609-989-6351 609-896-2000 609-896-9060 609-730-3850 609-587-1144

2024 Kiomeiry Csepes Jennifer Weisberg Millner Robert F. Morris Joseph Paravecchia Jessica A. Wilson

609-241-7111 609-896-9060 609-896-9060 609-989-6351 856-234-6800

2025 Frank P. Spada, Jr. C. Robert Luthman Bryan M. Roberts Nikki J. Davis Marc A. Brotman

215-877-2653 609-594-4000 609-896-9060 609-587-9100 609-275-0400

Michael Kahme Immediate Past President

609-734-6383

Michael Paglione NJSBA Representative

609-275-0400

Anita Mangat Executive Director | MCBA Office

609-585-6200

The MERCER COUNTY LAWYER is published four times per year; Winter, Spring, Summer and Fall. Advertisements appearing in the MERCER COUNTY LAWYER are the viewpoints of the contributors and are not necessarily endorsed by the Mercer County Bar Association or its members. The MCBA does not vouch for the accuracy of any legal analysis, citations, or opinions expressed in any articles contained herein. Individuals who are interested in joining the Association, placing advertising, or contributing articles should contact the Bar Association office at 609-585-6200, or e-mail info@mercerbar.com.

continued support of this organization and its mission.

I have the deepest admiration and gratitude for the MCBA staff. Anita Mangat, Michele Krasny, Loren Romberger and Terri Eide – thank you for your diligence, good cheer, and enthusiasm over the year. Entering a year as MCBA president with a new Executive Director is a challenge, but Anita took on her new role with grace and determination. Michele, Loren and Terri have gone above and beyond over the last several years, always helping where needed. This organization would never run without your efforts.

The partnership between the MCBA and the judiciary allows the bench and bar to collaborate on educational programming and work together in ensuring that the most efficient process is available to both lawyers and litigants. Judge Lougy has been a dedicated partner to the MCBA over the last year, and an invaluable resource to me. Over the years, we have been lucky to have Judge Jacobson and Judge Feinberg, who also fostered that close relationship. Thanks to all of our judges for your participation in our events, and your support of our association.

I wish the very best of luck to our incoming president, Jennifer Zoschak, and to Brian Shea, Ross Switkes, Jennifer Downing-Mathis, and Joe Paravecchia. No doubt, your year will present challenges, but I know you all have the skills to navigate any hurdle. Working with all of you this year has been a pleasure. Jenn, I am certain your intelligence, empathy, and determination will make you a tremendous president. Thank you to this year’s trustees and committee chairs. It was a pleasure to work with you this year in developing programming for our members. I also want to welcome our new trustees: Jenna Casper Bloom, Heather Hadley, Michael Jordan, and Neethi Vasudevan. I can’t wait to see how you grow in this organization.

Many thanks to my coworkers in the Capital Health Risk Management and Legal Departments, and especially to Steve Miller and Raf Villalobos, who never questioned the time and attention my presidential duties demanded. Becoming MCBA president and starting a new job within days of each other was a truly insane thing to do; thanks for your constant support. I never would have become involved in the bar association without the support and encouragement of Rudy Socey, Greg Giordano, and all the attorneys of the Lenox Law Firm. Thank you for your friendship and mentorship over the years.

My family deserves the biggest thanks of all. My parents, sister, and extended family have shown tremendous patience over the last year as the MCBA took up so much of my attention and caused occasional grumpiness. Thank you for your encouragement and support.

My final thank you is to the group of people I am about to join: the past presidents of the MCBA. Over the last 15 years, it has been a pleasure to work with you, and over the last year, many of you have provided invaluable advice. I want to thank Michael Kahme, Denise Mariani, James Creegan, and Craig Hubert for the support they gave me over the last year. Angelo Onofri, thank you for giving so selflessly in leading the Bar Foundation, and for your guidance. Finally, Brian Duff and Tanya Phillips, thank you for being my A Team. I never could have done it without you.

It has been a pleasure. I would like to send my very best wishes to all of you and your families for a joyous holiday.

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Upcoming Events & Meetings

All Attorneys Are Invited To Attend Bench Bar Meetings

Trustee Meeting Tuesday, January 9, 2023 | 5:30 pm • This meeting will be held in person at Malaga Restaurant • A calendar invite will be sent to all Trustees Chancery/Probate Bench Bar Wednesday, January 17, 2023 | 4:00 pm • This meeting will be held virtually via Zoom • Register here for this meeting

Family Bench Bar & CLE program Wednesday, January 24, 2023 | 3:30 pm • This meeting will be held virtually via Zoom • Register here for this meeting

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Mercer County Bar Association Awards Gala & GM Meeting October 27, 2023 Trenton Country Club

On October 27, 2023 the MCBA hosted a 007 themed Awards Gala and General Membership meeting at Trenton Country Club. Congratulations to Community Partner award winner Anchor House, Harry O' Malley award winner Arthur Sypek, and Michael J. Nizolek award winner Angelo Onofri!

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HOLIDAY PARTY & Toy Drive

Thursday, December 7, 2023 Chauncey Hotel & Conference Center

The Mercer County Bar Association was excited to host the 2023 Holiday Party & Toy Drive at Chauncey Hotel and Conference Center on Thursday, December 8th. At this event we honored two retired judges, Honorable Janetta D. Marbrey, J.S.C. and Honorable Anthony M. Massi, J.S.C. The Mercer County Bar Foundation also awarded this year's Samantha Josephson Scholarship to Danielle Mizrahi. All toys were donated to Mount Carmel Guild of Trenton.

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New Attorney Announcements (Click on image to view profile)

Ksenia Cutler (Hamilton Office)

Thomas Kellerman (Hamilton Office)

Ryan Michaleski (Yardley Office)

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Amanda Lewis (Hamilton Office)

Tanner Maybury (Marlton & Hamilton Office)

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Thank you to MESP Panelists!

Submitted by: Rebecca R. Colon, Mercer County ESP Chair

Rule 5:5-5 requires each vicinage to establish a matrimonial Early Settlement Program (“MESP”), consisting of panels of attorneys who volunteer their time to assist divorce litigants in settling their cases. This program is not possible without the generosity of our members, who offer their time, experience and expertise to give litigants recommendations about how the Court is likely to decide their cases and how they can reach settlements to avoid the significant financial and emotional toll of continued litigation. The success of Mercer County’s MESP is due to the dedication of our panelists, and as the Mercer County ESP Chair, I want to thank them for the time and effort they commit to this program.

We are always happy to have new panelists. If you have at least five years’ experience in matrimonial law and would like to serve as an MESP panelist, please contact me at RC@OZfamilylaw.com.

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Call for District VII Fee Arbitration Committee Members Submitted by:

Rebecca R. Colon Secretary, District VII Fee Arbitration Committee

The New Jersey Supreme Court established the fee arbitration system on April 1, 1978 with the goal of enabling clients to dispute attorneys’ fees in a way that is faster, less expensive and less formal than litigation. The system is designed to allow clients to file a fee dispute claim, to permit attorneys to file a response, and to then have a hearing before a threemember panel. The hearings are intended to permit both the client and the attorney to present their positions to the panel, which then issues a binding written determination as to whether the attorney’s fee is reasonable.

Each fee arbitration panel is comprised of two attorney members and one public member, all of whom are volunteers.

These volunteers are the foundation of the fee arbitration system, without whom the system cannot function. In Mercer County, we do not currently have a full compliment of either attorney or public members, which has led to a delay in the scheduling of hearings. This delay results in a disservice to both the clients and the attorneys, who depend on the fee arbitra-

tion system to quickly and efficiently resolve these matters.

To the current District VII attorney and public members, thank you for your time and service to the fee arbitration committee. If you are not a member of the fee arbitration committee, I encourage you to apply.

Members serve for four-year terms. In addition to serving the New Jersey Supreme Court, the bar and members of the general public, fee arbitration committee members receive the benefit of a Madden exemption and have the opportunity to receive ethics CLE credits at no cost. The Judiciary is committed to obtaining a volunteer corps as diverse as the community it serves, so if you are interested in applying to serve as a member of the District VII Fee Arbitration Committee, please contact me at RC@OZfamilylaw.com for an application.

If you know any non-attorneys who would be interested in serving as public members, please have them reach out to me as well.

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Guardianship as a Tool of Last Resort Submitted by: Nina Weiss, Esq. The law requires that reasonable and good faith efforts be made to find the least restrictive and least intrusive surrogate decision-making arrangement under the circumstances. The goal in any surrogate decision-making arrangement is to strike the proper balance between protection and autonomy. It is also important to remember as the title implies, guardianship is a “tool” and not a panacea.

Guardianship is a legal tool to advocate for and enhance the lives of those living with diminished capacity. However, guardianship alone is unable to solve many challenges facing these individuals.

Guardianship should also not be used as a sledgehammer to alter or cure certain behaviors. An individual residing in the community who habitually calls 911 for example will still be able to do so, even if under guardianship. Guardianship is one tool in our toolbox and should be used only when necessary, in limited ways, to enhance decision making.

Less restrictive alternatives to guardianship include Supportive Decision Making, Powers of Attorney, Advance Medical/Instruction Directives, and Conservatorships, which all presume some level of capacity. Limited A Publication of the Mercer County Bar Association

Guardianship is also a less restrictive alternative to full guardianship which contemplates an individual has diminished capacity yet maintains some level of capacity. Unfortunately, limited guardianship remains an underutilized tool, but ideally should be used more, to formally and legally recognize that an individual may lack capacity in certain areas but maintain it in others. The New Jersey Limited Guardianship Statute is found at N.J.S.A. 3B:12-24.1(b). The statute sets forth that: If a person is only partially incapacitated, a court must make specific findings in one of two ways: the Guardian can be vested with only specific authority and the individual retains all other capabilities or the individual retains specific delineated areas of decision making and the guardian is vested with all other decisions. In general, in any guardianship, a court will be asked to assess six general areas of decision making: Medical, Legal, Residential, Financial, Vocational, and Educational.

Example A: 18-Year-Old Woman with a Developmental Disability where she retains specific abilities:

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Notwithstanding the adjudication of incapacity and appointment of co-guardians, Meg Sims shall specifically retain the ability to: • Seek and maintain employment (vocational decision making); • Apply to and engage in continued education, including college or other post high school endeavors (educational decision making); • Manage and spend up to 10% of monthly income from various payment sources, including though not necessarily limited to employment earnings and Social Security benefits, to be known as Meg ‘s discretionary income (limited financial decision making); Example B: Individual with Transient Mental Health Issues where guardians vested with only specific authority: Jack and Jill, in their fiduciary capacity as limited co-guardians of the person for Jen, are specifically vested with the following authority: • To admit or facilitate the commitment of Jen to a hospital for the purpose of medical/psychiatric or psychological evaluation and/or treatment and to attend treatment team meetings; • To have access to examine and copy medical records, including confidential medical records, and to be considered personal representatives under the Standards for Privacy of Individually

•

Identifiable Health Information (“Privacy Rule”) issued pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); To sign all insurance forms attendant to Jen’s medical treatment;

In seeking and crafting limited guardianship, it is important to understand the legal standard for guardianship set forth at N.J.S.A. 3B:12-24. If the court finds that an individual is incapacitated and is without capacity to govern himself or manage his affairs, the court may appoint a guardian who shall exercise all rights and powers of the incapacitated person. This must be proven by “clear and convincing evidence”, a high burden. This standard applies to each area of decision making.

An application must be supported by two certifications as to an individual’s inability to manage his affairs (2 physicians or 1 physician and 1 psychologist; Rule 4:86-2 (b)). A psychologist can play a large role in the implementation of limited guardianships since they customarily prepare a “functional assessment” as opposed to a merely diagnostic assessment of capacity.

For individuals eligible or enrolled in DDD, a recent IEP can be used to support the need for guardianship in lieu of a second evaluation. The IEP, like a psychologist’s functional assessment, can provide insight into the creation of a limited guardianship and highlight areas of A Publication of the Mercer County Bar Association

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relative strength and need.

In all guardianship matters in New Jersey, an attorney is appointed for the individual. This is a fundamental civil rights issue. The court is considering whether to remove decision making away from someone and to vest it with another person. The appointment of counsel is an essential due process protection. The law is crystal clear that counsel is a zealous advocate for the stated wishes of the client. Counsel is NOT a guardian ad litem and counsel is not a fact finder nor is counsel’s duty to the court. Counsel’s duty is to his or her client. Counsel shall also serve as an advocate for less restrictive alternatives. The standard report of counsel promulgated by the Administrative Office of the Courts contemplates that the court appointed counsel has evaluated the prospect of such less restrictive alternatives, including limited guardianship.

Even once a guardian is appointed, limited or otherwise, the guardian maintains a duty to ascertain and effectuate the wishes of the individual to the extent possible and reasonable. The law dictates that a guardian must initially utilize the Substituted Judgment standard of decision making. The guardian should make decisions based on the individual’s own values, dictated by the individual’s wishes. If the individual is unable to express these to the guardian, the guardian A Publication of the Mercer County Bar Association

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should use collateral evidence as necessary to ascertain these wishes. A guardian may then utilize the Best Interest standard of decision making only if they are unable to ascertain the individual’s wishes or if those wishes are unreasonable. This is an objective standard of decision making reflective of societal norms and values.

The National Guardianship Association has promulgated standards for guardian decision making including those relating to least restrictive alternatives and selfdetermination of the person. According to the NGA, the guardian shall carefully evaluate the alternatives that are available and choose the one that best meets the needs of the individual while placing the least restrictions on his freedom, rights and ability to control his environment.

The guardian shall provide the person under guardianship with every opportunity to exercise those individual rights that the person might be capable of exercising as they relate to the personal care and financial needs of the person. The guardian shall attempt to maximize the self-reliance and independence of the person. The guardian shall encourage the person to participate, to the maximum extent of the person's abilities, in all decisions that affect him or her, to act on his or her own behalf in all matters in which the person is able to do so, and to develop or regain his or her own capacity to the

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maximum extent possible.

New Jersey explicitly recognizes the concept of restoration to capacity and the individual’s rights in that regard. The need for a restoration to capacity action can arise in many different scenarios. A person who suffered a stroke may rehabilitate. A young adult placed under guardianship at age 18 may have matured and developed skills and further independence. The New Jersey restoration statute is found at NJSA 3B:12-28 and sets forth that The Superior Court may adjudicate that the incapacitated person has returned to full or partial competency and restore to that person his civil rights and estate as it exists at the time of the return to competency if the court is satisfied that the person has recovered his sound reason and is fit to govern himself and manage his affairs. The New Jersey Rule of Court 4:86 is explicit about an individual’s rights in this regard and sets forth that the individual maintains the right to petition the court to modify or terminate the guardianship, including the right to meet privately with an attorney or other advocate to assist with this legal procedure, as well as the right to petition for access to funds to cover legal fees and cost, and maintains the right to request the court to review the guardian's actions, request removal and replacement of the guardian, and/or request that the court restore rights as provided in N.J.S.A.

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3B:12-28.

More than twenty years ago, as an attorney in the Office of the Public Guardian, I attended court for a guardianship matter and immediately after court, I observed an attorney counseling a client, who was just appointed as guardian, that the relationship is akin to parent to child.

I was taken aback by the inappropriateness and fundamental illegality of this advice. An individual placed under guardianship or limited guardianship may have diminished capacity, but as an adult, they also have years of living and earned wisdom, thus they are not akin to children in any way. The New Jersey statute and rule explicitly contradict such advice and recognize the fundamental rights for all individuals.

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LEAP Software Blog

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Thank You 2023 MCBA Business Sponsors!

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