Kenneth Vercammen, Esq. handles Probate, Estate Administration and Wills. He was a speaker at the American Bar Association ABA Annual meeting and is Co-Chair of the Probate & Estate Planning Committee. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com or call.
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Ave.
Edison, NJ 08817
(732) 572-0500
www.njlaws.com

Monday, September 22, 2014

Action for Guardianship of a Mentally Incapacitated Person, Rule 4:86

Kenneth Vercammen's Office represents persons seeking legal Guardianship of a Parent or Adult Family Member.
Occasionally an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. If a legally prepared power of attorney was signed, a trusted family member, friend or professional can legally act on that persons affairs. If a power of attorney was not signed, your attorney must file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs.
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 grantors bills and to handle the grantors affairs during the inability of the grantor to do the same.
A Power of Attorney is an appointment of another person as ones 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.
Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouses signature. If a valid power of attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid.
Without a power of attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.
According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be legally incompetent." p11
1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11
Recently the legislation changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents.
2. What rights does a incompetent lose? Unless a Court orders otherwise, a ward/ incompetent does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent also loses the right to marry.
3. How does somebody become the guardian of another? Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent or are parents of an unmarried incompetent can choose who will become the guardian after the guardians die and include a clause designating their successor in their wills. Disability Laws p12 Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent plus reasons why the incompetent is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent and prepare a report to the Court.
4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent who will act to protect the incompetents best interests can be guardian. when a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.
5. What are the rights of the proposed incompetent prior to hearing? The proposed incompetent is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.
6. What happens if the incompetent regain the ability to manage his or her affairs? The incompetent came then go back to Court and ask to be made his or her own guardian again, but first must show that he or she has regained "sound reason".
7. When is a guardian not needed? Just because a person has a disability, does not mean that they need a guardian. A guardian is not needed if a person can make, and understands the nature of the decisions, and communicate the decisions to others. A guardian is not required for someone who has a physical disability, but who can manage his or her affairs, and is not needed if a person merely has a problem managing money or property. Disability Law p12
4:86-1. Complaint
Every action for the determination of mental incapacity of a person and for the appointment of a guardian of that person or of the persons estate or both, other than an action with respect to a veteran under N.J.S.A. 3B:13-1 et seq., shall be brought pursuant to R. 4:86-1 through R. 4:86-8. The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged mentally incapacitated person and of the alleged mentally incapacitated persons spouse, if any; the plaintiffs relationship to the alleged mentally incapacitated person; the plaintiffs interest in the action; the names, addresses and ages of the alleged mentally incapacitated persons children, if any, and the names and addresses of the alleged mentally incapacitated persons parents and nearest of kin; the name and address of the person or institution having the care and custody of the alleged mentally incapacitated person; and if the alleged mentally incapacitated person has lived in an institution, the period or periods of time the alleged mentally incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined. The complaint also shall state the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged mentally incapacitated person, any person named as health care representative in any health care directive executed by the alleged mentally incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged mentally incapacitated person. Note: Source-R.R. 4:102-1. Amended July 22, 1983 to be effective September 12, 1983; former R. 4:83-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; R. 4:86 caption amended, and text of R. 4:86-1 amended July 12, 2002 to be effective September 3, 2002. 4:86-2. Accompanying Affidavits
The allegations of the complaint shall be verified as prescribed by R. 1:4-7 and shall have annexed thereto: (a) An affidavit stating the nature, location and fair market value (1) of all real estate in which the alleged mentally incapacitated person has or may have a present or future interest, stating the interest, describing the real estate fully or by metes and bounds, and stating the assessed valuation thereof; and (2) of all the personal estate which he or she is, will or may in all probability become entitled to, including the nature and total or annual amount of any compensation, pension, insurance, or income which may be payable to the alleged mentally incapacitated person. If the plaintiff cannot secure such information, the complaint shall so state and give the reasons therefor, and the affidavit submitted shall in that case contain as much information as can be secured in the exercise of reasonable diligence; (b) Affidavits of two reputable physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t. If an alleged mentally incapacitated person has been committed to a public institution and is confined therein, one of the affidavits shall be that of the chief executive officer, the medical director, or the chief of service providing that person is also the physician with overall responsibility for the professional program of care and treatment in the administrative unit of the institution. However, where an alleged mentally incapacitated person is domiciled within this State but resident elsewhere, the affidavits may be those of physicians who are residents of the state or jurisdiction of the alleged mentally incapacitated persons residence. Each affiant shall have made a personal examination of the alleged mentally incapacitated person not more than 30 days prior to the filing of the complaint, but said time period may be relaxed by the court on an ex parte showing of good cause. To support the complaint, each affiant shall state: (1) the date and place of the examination; (2) whether the physician is a treating or examining physician; (3) whether the physician is disqualified under R. 4:86-3; (4) the diagnosis and prognosis and factual basis therefor; (5) for purposes of ensuring that the alleged mentally incapacitated person is the same individual who was examined, a physical description of the person examined, including but not limited to sex, age and weight; and (6) the affiants opinion that the alleged mentally incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged mentally incapacitated person upon which this opinion is based, including a history of the alleged mentally incapacitated persons condition. The affidavit should also include an opinion whether the alleged mentally incapacitated person is capable of attending the hearing and if not, the reasons for the individuals inability. (c) In lieu of the affidavits provided for in paragraph (b), an affidavit of one reputable physician having the qualifications as required by paragraph (b), stating that he or she has endeavored to make a personal examination of the alleged mentally incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged mentally incapacitated person or those in charge of him or her have refused or are unwilling to have the affiant make such an examination. The time period herein prescribed may be relaxed by the court on an ex parte showing of good cause. Note: Source-R.R. 4:102-2; former R. 4:83-2 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a), (b), and (c) amended July 12, 2002 to be effective September 3, 2002. 4:86-3. Disqualification of Physician
No affidavit shall be submitted by a physician who is related, either through blood or marriage, to the alleged mentally incapacitated person or to a proprietor, director or chief executive officer of any institution (except state, county or federal institutions) for the care and treatment of the mentally ill in which the alleged mentally incapacitated person is living, or in which it is proposed to place him or her, or who is professionally employed by the management thereof as a resident physician, or who is financially interested therein. Note: Source-R.R. 4:102-3; former R. 4:83-3 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; amended July 12, 2002 to be effective September 3, 2002. 4:86-4. Order for Hearing (a) Contents of Order. If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a date for hearing and requiring that at least 20 days notice thereof be given to the alleged mentally incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged mentally incapacitated person, any person named as health care representative in any health care directive executed by the alleged mentally incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged mentally incapacitated person, the alleged mentally incapacitated persons spouse, children 18 years of age or over, parents, the person having custody of the alleged mentally incapacitated person, the attorney appointed pursuant to R. 4:86-4(b), and such other persons as the court directs. Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged mentally incapacitated person personally and upon each of the other persons in such manner as the court directs. The court, in the order, may, for good cause, allow shorter notice or dispense with notice, but in such case the order shall recite the ground therefor, and proof shall be submitted at the hearing that the ground for such dispensation continues to exist. A separate notice shall, in addition, be personally served on the alleged mentally incapacitated person stating that if he or she desires to oppose the action he or she may appear either in person or by attorney and may demand a trial by jury. (b) Appointment and Duties of Counsel. The order shall include the appointment by the court of counsel for the alleged mentally incapacitated person. Counsel shall 1) personally interview the alleged mentally incapacitated person; 2) make inquiry of persons having knowledge of the alleged mentally incapacitated persons circumstances, his or her physical and mental state and his or her property; 3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged mentally incapacitated person or to discover any interests the alleged mentally incapacitated person may have as beneficiary of a will or trust. At least three days prior to the hearing date counsel shall file a report with the court and serve a copy thereof on plaintiffs attorney and other parties who have formally appeared in the matter. The report shall contain the information developed by counsels inquiry; shall make recommendations concerning the courts determination on the issue of mental incapacity; may make recommendations concerning the suitability of less restrictive alternatives such as a conservatorship or a delineation of those areas of decision-making that the alleged mentally incapacitated person may be capable of exercising; and whether a case plan for the mentally incapacitated person should thereafter be submitted to the court. The report shall further state whether the alleged mentally incapacitated person has expressed dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court. The report shall also make recommendations concerning whether good cause exists for the court to order that any power of attorney, health care directive, or revocable trust created by the alleged mentally incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. If the alleged mentally incapacitated person obtains other counsel, such counsel shall notify the court and appointed counsel at least five days prior to the hearing date. (c) Examination. If the affidavit supporting the complaint is made pursuant to R. 4:86-2(c), the court may, on motion and upon notice to all persons entitled to notice of the hearing under paragraph (a), order the alleged mentally incapacitated person to submit to an examination. The motion shall set forth the names and addresses of the physicians who will conduct the examination, and the order shall specify the time, place and conditions of the examination. Upon request, the report thereof shall be furnished to either the examined party or his or her attorney. (d) Guardian Ad Litem. At any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged mentally incapacitated person and to present that evaluation to the court. (e) Compensation. The compensation of the appointed counsel and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged mentally incapacitated person or in such other manner as the court shall direct. Note: Source-R.R. 4:102-4(a)(b). Paragraph (b) amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; caption of former R. 4:83-4 amended, caption and text of paragraph (a) amended and in part redesignated as paragraph (b) and former paragraph (b) redesignated as paragraph (c) and amended, and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended and paragraphs (d) and (e) added June 28, 1996 to be effective September 1, 1996; paragraphs (a), (b), (c), (d), and (e) amended July 12, 2002 to be effective September 3, 2002. 4:86-5. Proof of Service; Appearance of Mentally Incapacitated Person at Hearing; Answer
Prior to the hearing, the plaintiff shall file proof of service of the notice, order for hearing, complaint and affidavits and proof by affidavit that the alleged mentally incapacitated person has been afforded the opportunity to appear personally or by attorney, and that he or she has been given or offered assistance to communicate with friends, relatives, or attorneys. The plaintiff or appointed counsel may produce the alleged mentally incapacitated person at the hearing or the court may direct the plaintiff to do so, unless the court finds that it would be prejudicial to the health of the alleged mentally incapacitated person or unsafe for the alleged mentally incapacitated person or others to do so. If the alleged mentally incapacitated person or any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than five days before the hearing, serve and file an answer to the complaint. Note: Source-R.R. 4:102-5; caption and text of former R. 4:83-5 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-6. Hearing; Judgment
(a) Trial. Unless a trial by jury is demanded by or on behalf of the alleged mentally incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of mental incapacity. If there is no jury, the court, with the consent of counsel for the alleged mentally incapacitated person, may take the testimony of a physician by telephone or may dispense with the physicians oral testimony and rely on the affidavits submitted pursuant to R. 4:86-2(b). Telephone testimony shall be recorded verbatim. (b) Motion for New Trial. A motion for a new trial shall be served not later than 30 days after the entry of the judgment. (c) Appointment of Guardian. If a guardian of the person or of the estate or of both the person and the estate is to be appointed, the court shall appoint and letters shall be granted to the mentally incapacitated persons spouse, if the spouse was living with the mentally incapacitated person as husband or wife at the time the mental incapacity arose, or to the mentally incapacitated persons next of kin; or if none of them will accept the appointment or if the court is satisfied that no appointment from among them will be in the best interests of the mentally incapacitated person, then the court shall appoint and letters shall be granted to such other person who will accept appointment as the court determines is in the best interests of the mentally incapacitated person. Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1. The judgment appointing the guardian shall fix the amount of the bond, unless dispensed with by the court. The order of appointment shall require the guardian of the estate to file with the court within 90 days of appointment an inventory specifying all property and income of the mentally incapacitated persons estate, unless the court dispenses with this requirement. Within this time period, the guardian of the estate shall also serve copies of the inventory on all next of kin and such other interested parties as the court may direct. The order shall also require the guardian to keep the Surrogate continuously advised of the whereabouts and telephone number of the guardian and of the mentally incapacitated person and to advise the Surrogate within 30 days of the mentally incapacitated persons death or of any major change in his or her status or health. Note: Source-R.R. 4:102-6(a)(b)(c), 4:103-3 (second sentence). Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended November 5, 1986 to be effective January 1, 1987; paragraphs (a) and (c) of former R. 4:83-6 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (c) amended July 12, 2002 to be effective September 3, 2002. 4:86-7. Regaining Mental Capacity
Upon the commencement of a separate action or upon the filing of a motion in the original cause by the mentally incapacitated person or an interested person on his or her behalf, supported by affidavit and setting forth facts evidencing that the previously mentally incapacitated person no longer is mentally incapacitated, the court shall, on notice to the persons who would be set forth in a complaint filed pursuant to R. 4:86-1, set a date for hearing, take oral testimony in open court with or without a jury, and may render judgment that the person no longer is mentally incapacitated, that his or her guardian be discharged subject to the duty to account, and that his or her person and estate be restored to his or her control. Note: Source-R.R. 4:102-7; former R. 4:83-7 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-8. Appointment of Guardian for Nonresident Mentally Incapacitated Person
An action for the appointment of a guardian for a nonresident who has been or shall be found to be a mentally incapacitated person under the laws of the state or jurisdiction in which the mentally incapacitated person resides shall be brought in the Superior Court pursuant to R. 4:67. The plaintiff shall exhibit and file with the court an exemplified copy of the proceedings or other evidence establishing the finding. If the plaintiff is the duly appointed guardian, trustee or committee of the mentally incapacitated person in the state or jurisdiction in which the finding was made, and applies to be appointed guardian in this State, the court may forthwith appoint that person without issuing an order to show cause. Note: Source-R.R. 4:102-8. Amended July 26, 1984 to be effective September 10, 1984; former R. 4:83-8 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-9. Guardians for Mentally Incapacitated Persons Under Uniform Veterans Guardianship Law
(a) Complaint for Appointment. An action for the appointment of a guardian under N.J.S.A. 3B:13-1 et seq. for a ward alleged to be a mentally incapacitated person shall be brought in the Superior Court by any person entitled to priority of appointment. If there is no person so entitled or if the person so entitled fails or refuses to commence the action within 30 days after the mailing of notice by a federal agency to the last known address of such person entitled to priority of appointment, indicating the necessity for the appointment, the action may be brought by any person residing in this State, acting on the wards behalf. (b) Complaint. The complaint shall state (1) the name, age and place of residence of the ward; (2) the name and place of residence of the nearest relative, if known; (3) the name and address of the person or institution, if any, having custody of the ward; (4) that such ward is entitled to receive money payable by or through a federal agency; (5) the amount of money due and the amount of probable future payments; and (6) that the ward has been rated a mentally incapacitated person on examination by a federal agency in accordance with the laws regulating the same. (c) Proof of Necessity for Guardian of Mentally Incapacitated Person. A certificate by the chief officer, or his or her representative, stating the fact that the ward has been rated a mentally incapacitated person by a federal agency on examination in accordance with the laws and regulations governing such agency and that appointment is a condition precedent to the payment of money due the ward by such agency shall be prima facie evidence of the necessity for making an appointment under this rule. (d) Determination of Mental Incapacity. Mental incapacity may be determined on the certificates, without other evidence, of two medical officers of the military service or of a federal agency, certifying that by reason of mental incapacity the ward is incapable of managing his or her property, or certifying to such other facts as shall satisfy the court as to such mental incapacity. (e) Appointment of Guardian; Bond. Upon proof of notice duly given and a determination of mental incapacity, the court may appoint a proper person to be the guardian and fix the amount of the bond. The bond shall be in an amount not less than that which will be due or become payable to the ward in the ensuing year. The court may from time to time require additional security. Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1. (f) Termination of Guardianship When Ward Regains Mental Capacity. If the court has appointed a guardian for the estate of a ward, it may subsequently, on due notice, declare the ward to have regained mental capacity on proof of a finding and determination to that effect by the medical authorities of the military service or federal agency or based on such other facts as shall satisfy the court as to the mental capacity of the ward. The court may thereupon discharge the guardian without further proceedings subject to the settlement of his or her account. (g) Complaint in Action to Have Guardian Receive Additional Personalty. The complaint in an action to authorize the guardian, pursuant to law, to receive personal property from any source other than the United States Government shall set forth the amount of such property and the name and address of the person or institution having actual custody of the ward. (h) Definitions. Definitions contained in N.J.S.A. 3B:13-2 shall apply to the terms of this rule. Note: Source-R.R. 4:102-9(a) (b) (c) (d) (e) (f) (g) (h), 4:103-3 (second sentence). Paragraph (a) amended July 22, 1983 to be effective September 12, 1983; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) through (f) and (h) of former R. 4:83-9 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption amended, paragraphs (a) and (b) amended, paragraphs (c) and (d) captions and text amended, paragraph (e) amended, and paragraph (f) caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-10. Appointment of Guardian for Persons Receiving Services From the Division of Developmental Disabilities
An action pursuant to N.J.S.A. 30:4-165.7 et seq. for the appointment of a guardian for a person over the age of 18 who is receiving services from the Division of Developmental Disabilities shall be brought pursuant to these rules insofar as applicable, except that: (a) The complaint may be brought by the Commissioner of Human Services or a parent, spouse, relative or other party interested in the welfare of such person. (b) In lieu of the affidavits prescribed by R. 4:86-2 the verified complaint shall have annexed thereto two affidavits. One affidavit shall be submitted by the chief executive officer, medical director, or other officer having administrative control over a Division of Developmental Disabilities program servicing the alleged mentally incapacitated person and the other shall be submitted by a physician licensed to practice in New Jersey or a psychologist licensed pursuant to N.J.S.A. 45:14B-1 et seq. The affidavit shall set forth with particularity the alleged mentally incapacitated persons significant chronic functional impairment, as that item is defined in N.J.S.A. 30:4-165.8, and the facts supporting the affiants belief that as a result thereof, the person lacks the cognitive capacity either to make decisions or to communicate decisions to others. (c) If the petition seeks guardianship of the person only, the Office of the Public Defender, if available, shall be appointed as attorney for the alleged mentally incapacitated person, as required by R. 4:86-4. If the Office of the Public Defender is unavailable or if the petition seeks guardianship of the person and the estate, the court shall appoint an attorney other than the Public Advocate to represent the alleged mentally incapacitated person. The attorney for the alleged mentally incapacitated person may where appropriate retain an independent expert to render an opinion respecting the mental incapacity of the alleged mentally incapacitated person. (d) The hearing shall be held pursuant to R. 4:86-6 except that a guardian may be summarily appointed if the attorney for the alleged mentally incapacitated person, by affidavit, does not dispute either the need for the guardianship or the fitness of the proposed guardian and if a plenary hearing is not requested either by the alleged mentally incapacitated person or on his or her behalf. Note: Adopted July 7, 1971 to be effective September 13, 1971; amended July 24, 1978 to be effective September 11, 1978. Former rule deleted and new rule adopted November 5, 1986 to be effective January 1, 1987; caption amended and paragraphs (b), (c) and (d) of former R. 4:83-10 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c) amended June 28, 1996 to be effective September 1, 1996; paragraphs (b), (c), and (d) amended July 12, 2002 to be effective September 3, 2002. 4:86-11. Appointment of Conservator
(a) Commencement of Action; Complaint. An action pursuant to N.J.S.A. 3B: 13A-1 et seq. for the appointment of a conservator shall be brought by a conservatee or other person on his or her behalf on notice, as provided by N.J.S.A. 3B: 13A-5 and 6. The complaint shall be filed in the Superior Court and shall state (1) the conservatees age and residence, (2) the names and addresses of the conservatees heirs and all other persons entitled to notice pursuant to N.J.S.A. 3B: 13A-6, and (3) the nature, location and fair market value of all property, real and personal, in accordance with R. 4:86-2(a). (b) Hearing. The court, without a jury, shall take testimony in open court to determine whether the conservatee, by reason of advanced age, illness or physical infirmity, is unable to care for or manage his or her property or has become unable to provide for himself or herself or others dependent upon him or her for support. The court may appoint counsel for the conservatee if it concludes that counsel is necessary to protect his or her interests. If the conservatee is unable to attend the hearing by reason of physical or other disability, the court shall appoint a guardian ad litem to conduct an investigation to determine whether the conservatee objects to the conservatorship. If counsel for the conservatee has, however, been appointed, such counsel shall conduct the investigation and no separate guardian ad litem shall be appointed. In no case shall a conservator be appointed if the court finds that the conservatee objects thereto. (c) Acceptance of Appointment. An acceptance of appointment as conservator may be taken before any person authorized by the laws of this State to administer an oath. (d) Settlement of Conservators Account. Where the court, for good cause shown, orders a full accounting by the conservator, the account shall be settled in the Superior Court in accordance with R. 4:87, insofar as applicable. Note: Adopted July 26, 1984 to be effective September 10, 1984; paragraphs (a), (b) and (c) of former R. 4:83-11 amended and rule redesignated June 29, 1990 to be effective September 4, 1990. 4:86-12. Special Medical Guardian
(a) Standards. On the application of a hospital, nursing home, treating physician, relative or other appropriate person under the circumstances, the court may appoint a special guardian of the person of a patient to act for the patient respecting medical treatment consistent with the courts order, if it finds that: (1) the patient is mentally incapacitated, unconscious, underage or otherwise unable to consent to medical treatment; (2) no general or natural guardian is immediately available who will consent to the rendering of medical treatment; (3) the prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patients life or health; and (4) the patient has not designated a health care representative or executed a health care instruction directive pursuant to the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78, determining the treatment question in issue. (b) Venue. The application shall be made to the Superior Court judge assigned to general equity in the vicinage in which the patient is physically located when the application is made and, in the event of that judges unavailability, to the Assignment Judge of the vicinage or the judge designated as the emergent judge, or if neither is available, any judge in the vicinage. (c) Procedure. The procedure on the application shall conform as nearly as practicable to the requirements of R. 4:86-1 to R. 4:86-6, but the judge may, if the circumstances require, accept an oral complaint and oral testimony either by telephone, in court, or at any other suitable location. If the circumstances do not permit the making of a verbatim record, the judge shall make detailed notes of the allegations of the complaint and the supporting testimony. Whenever possible an attorney shall be appointed to represent the patient. (d) Order. The order granting the application, if orally rendered, shall be reduced to writing as promptly as possible and shall recite the findings on which it is based. Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraphs (a), (b) and (c) of former R. 4:83-12 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (a) amended July 14, 1992 to be effective September 1, 1992; paragraph (a)(1) amended July 12, 2002 to be effective September 3, 2002.

Action for Guardianship of a Mentally Incapacitated Person, Rule 4:86

Action for Guardianship of a Mentally Incapacitated Person, Rule 4:86 




Kenneth Vercammen's Office represents persons seeking legal Guardianship of a Parent or Adult Family Member.
Occasionally an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. If a legally prepared power of attorney was signed, a trusted family member, friend or professional can legally act on that persons affairs. If a power of attorney was not signed, your attorney must file a formal complaint and other legal pleadings in the Superior Court to permit the trusted family member, friend or professional to be able to handle financial affairs.
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 grantors bills and to handle the grantors affairs during the inability of the grantor to do the same.
A Power of Attorney is an appointment of another person as ones 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.
Without a legal Power of Attorney or court ordered guardianship, even a spouse does not have the legal authority to sign their spouses signature. If a valid power of attorney is not legally prepared, signed and acknowledged in front of an attorney or notary, it is invalid.
Without a power of attorney, a Guardianship Order and Judgment must be obtained from the Superior Court to permit complete legal decision making.
According to Disability Law, A Legal Primer published by the New Jersey State Bar Association, "A guardian is a person appointed by a court to make financial and personal decisions for a person proven to be legally incompetent." p11
1. When is a guardian needed? A guardian is needed when an individual can not manage his or her life as a result of a mental or physical disability, alcohol or drug addiction. The person for whom a guardian is appointed is called a "ward". Disability Law at p11
Recently the legislation changed the designation of "mental incompetent" to "incapacitated person" in all laws, rules, regulations and documents.
2. What rights does a incompetent lose? Unless a Court orders otherwise, a ward/ incompetent does not have the right to decide where to live, spend money, use property, appear in Court or undergo medical treatment without the approval of his or her guardian. An unmarried incompetent also loses the right to marry.
3. How does somebody become the guardian of another? Guardians are appointed by Courts after the person in need of guardianship is proven incompetent. Guardianship actions can be brought under the general incompetency statute (N.J.S.A. 3B:12-25 et seq.) or under the statute dealing with people who receive services from the State Division of Developmental Disabilities. N.J.S.A.. 30:4-165.4 et seq. Guardians who are married to the incompetent or are parents of an unmarried incompetent can choose who will become the guardian after the guardians die and include a clause designating their successor in their wills. Disability Laws p12 Under the general incompetency statute, a Complaint requesting Guardianship must be filed in the Superior Court, plus a detailed Affidavit by the person requesting to be Guardian detailing the assets of the incompetent plus reasons why the incompetent is no longer able to manage their affairs. Affidavits of two doctors are also needed. The Court will appoint a temporary attorney to interview the incompetent and prepare a report to the Court.
4. Who can be a guardian? Generally, a close relative or a person with a close relationship to the proposed incompetent who will act to protect the incompetents best interests can be guardian. when a close friend or relative is not available, the Court may appoint the Public Guardian (for persons over 60) or an Attorney to serve as guardian.
5. What are the rights of the proposed incompetent prior to hearing? The proposed incompetent is entitled to receive advance notice of the guardianship hearing, to be represented by a lawyer and to present a defense at the hearing.
6. What happens if the incompetent regain the ability to manage his or her affairs? The incompetent came then go back to Court and ask to be made his or her own guardian again, but first must show that he or she has regained "sound reason".
7. When is a guardian not needed? Just because a person has a disability, does not mean that they need a guardian. A guardian is not needed if a person can make, and understands the nature of the decisions, and communicate the decisions to others. A guardian is not required for someone who has a physical disability, but who can manage his or her affairs, and is not needed if a person merely has a problem managing money or property. Disability Law p12
4:86-1. Complaint
Every action for the determination of mental incapacity of a person and for the appointment of a guardian of that person or of the persons estate or both, other than an action with respect to a veteran under N.J.S.A. 3B:13-1 et seq., shall be brought pursuant to R. 4:86-1 through R. 4:86-8. The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged mentally incapacitated person and of the alleged mentally incapacitated persons spouse, if any; the plaintiffs relationship to the alleged mentally incapacitated person; the plaintiffs interest in the action; the names, addresses and ages of the alleged mentally incapacitated persons children, if any, and the names and addresses of the alleged mentally incapacitated persons parents and nearest of kin; the name and address of the person or institution having the care and custody of the alleged mentally incapacitated person; and if the alleged mentally incapacitated person has lived in an institution, the period or periods of time the alleged mentally incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined. The complaint also shall state the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged mentally incapacitated person, any person named as health care representative in any health care directive executed by the alleged mentally incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged mentally incapacitated person. Note: Source-R.R. 4:102-1. Amended July 22, 1983 to be effective September 12, 1983; former R. 4:83-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; R. 4:86 caption amended, and text of R. 4:86-1 amended July 12, 2002 to be effective September 3, 2002. 4:86-2. Accompanying Affidavits
The allegations of the complaint shall be verified as prescribed by R. 1:4-7 and shall have annexed thereto: (a) An affidavit stating the nature, location and fair market value (1) of all real estate in which the alleged mentally incapacitated person has or may have a present or future interest, stating the interest, describing the real estate fully or by metes and bounds, and stating the assessed valuation thereof; and (2) of all the personal estate which he or she is, will or may in all probability become entitled to, including the nature and total or annual amount of any compensation, pension, insurance, or income which may be payable to the alleged mentally incapacitated person. If the plaintiff cannot secure such information, the complaint shall so state and give the reasons therefor, and the affidavit submitted shall in that case contain as much information as can be secured in the exercise of reasonable diligence; (b) Affidavits of two reputable physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t. If an alleged mentally incapacitated person has been committed to a public institution and is confined therein, one of the affidavits shall be that of the chief executive officer, the medical director, or the chief of service providing that person is also the physician with overall responsibility for the professional program of care and treatment in the administrative unit of the institution. However, where an alleged mentally incapacitated person is domiciled within this State but resident elsewhere, the affidavits may be those of physicians who are residents of the state or jurisdiction of the alleged mentally incapacitated persons residence. Each affiant shall have made a personal examination of the alleged mentally incapacitated person not more than 30 days prior to the filing of the complaint, but said time period may be relaxed by the court on an ex parte showing of good cause. To support the complaint, each affiant shall state: (1) the date and place of the examination; (2) whether the physician is a treating or examining physician; (3) whether the physician is disqualified under R. 4:86-3; (4) the diagnosis and prognosis and factual basis therefor; (5) for purposes of ensuring that the alleged mentally incapacitated person is the same individual who was examined, a physical description of the person examined, including but not limited to sex, age and weight; and (6) the affiants opinion that the alleged mentally incapacitated person is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged mentally incapacitated person upon which this opinion is based, including a history of the alleged mentally incapacitated persons condition. The affidavit should also include an opinion whether the alleged mentally incapacitated person is capable of attending the hearing and if not, the reasons for the individuals inability. (c) In lieu of the affidavits provided for in paragraph (b), an affidavit of one reputable physician having the qualifications as required by paragraph (b), stating that he or she has endeavored to make a personal examination of the alleged mentally incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged mentally incapacitated person or those in charge of him or her have refused or are unwilling to have the affiant make such an examination. The time period herein prescribed may be relaxed by the court on an ex parte showing of good cause. Note: Source-R.R. 4:102-2; former R. 4:83-2 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a), (b), and (c) amended July 12, 2002 to be effective September 3, 2002. 4:86-3. Disqualification of Physician
No affidavit shall be submitted by a physician who is related, either through blood or marriage, to the alleged mentally incapacitated person or to a proprietor, director or chief executive officer of any institution (except state, county or federal institutions) for the care and treatment of the mentally ill in which the alleged mentally incapacitated person is living, or in which it is proposed to place him or her, or who is professionally employed by the management thereof as a resident physician, or who is financially interested therein. Note: Source-R.R. 4:102-3; former R. 4:83-3 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; amended July 12, 2002 to be effective September 3, 2002. 4:86-4. Order for Hearing (a) Contents of Order. If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a date for hearing and requiring that at least 20 days notice thereof be given to the alleged mentally incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged mentally incapacitated person, any person named as health care representative in any health care directive executed by the alleged mentally incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged mentally incapacitated person, the alleged mentally incapacitated persons spouse, children 18 years of age or over, parents, the person having custody of the alleged mentally incapacitated person, the attorney appointed pursuant to R. 4:86-4(b), and such other persons as the court directs. Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged mentally incapacitated person personally and upon each of the other persons in such manner as the court directs. The court, in the order, may, for good cause, allow shorter notice or dispense with notice, but in such case the order shall recite the ground therefor, and proof shall be submitted at the hearing that the ground for such dispensation continues to exist. A separate notice shall, in addition, be personally served on the alleged mentally incapacitated person stating that if he or she desires to oppose the action he or she may appear either in person or by attorney and may demand a trial by jury. (b) Appointment and Duties of Counsel. The order shall include the appointment by the court of counsel for the alleged mentally incapacitated person. Counsel shall 1) personally interview the alleged mentally incapacitated person; 2) make inquiry of persons having knowledge of the alleged mentally incapacitated persons circumstances, his or her physical and mental state and his or her property; 3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged mentally incapacitated person or to discover any interests the alleged mentally incapacitated person may have as beneficiary of a will or trust. At least three days prior to the hearing date counsel shall file a report with the court and serve a copy thereof on plaintiffs attorney and other parties who have formally appeared in the matter. The report shall contain the information developed by counsels inquiry; shall make recommendations concerning the courts determination on the issue of mental incapacity; may make recommendations concerning the suitability of less restrictive alternatives such as a conservatorship or a delineation of those areas of decision-making that the alleged mentally incapacitated person may be capable of exercising; and whether a case plan for the mentally incapacitated person should thereafter be submitted to the court. The report shall further state whether the alleged mentally incapacitated person has expressed dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court. The report shall also make recommendations concerning whether good cause exists for the court to order that any power of attorney, health care directive, or revocable trust created by the alleged mentally incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. If the alleged mentally incapacitated person obtains other counsel, such counsel shall notify the court and appointed counsel at least five days prior to the hearing date. (c) Examination. If the affidavit supporting the complaint is made pursuant to R. 4:86-2(c), the court may, on motion and upon notice to all persons entitled to notice of the hearing under paragraph (a), order the alleged mentally incapacitated person to submit to an examination. The motion shall set forth the names and addresses of the physicians who will conduct the examination, and the order shall specify the time, place and conditions of the examination. Upon request, the report thereof shall be furnished to either the examined party or his or her attorney. (d) Guardian Ad Litem. At any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged mentally incapacitated person and to present that evaluation to the court. (e) Compensation. The compensation of the appointed counsel and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged mentally incapacitated person or in such other manner as the court shall direct. Note: Source-R.R. 4:102-4(a)(b). Paragraph (b) amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; caption of former R. 4:83-4 amended, caption and text of paragraph (a) amended and in part redesignated as paragraph (b) and former paragraph (b) redesignated as paragraph (c) and amended, and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended and paragraphs (d) and (e) added June 28, 1996 to be effective September 1, 1996; paragraphs (a), (b), (c), (d), and (e) amended July 12, 2002 to be effective September 3, 2002. 4:86-5. Proof of Service; Appearance of Mentally Incapacitated Person at Hearing; Answer
Prior to the hearing, the plaintiff shall file proof of service of the notice, order for hearing, complaint and affidavits and proof by affidavit that the alleged mentally incapacitated person has been afforded the opportunity to appear personally or by attorney, and that he or she has been given or offered assistance to communicate with friends, relatives, or attorneys. The plaintiff or appointed counsel may produce the alleged mentally incapacitated person at the hearing or the court may direct the plaintiff to do so, unless the court finds that it would be prejudicial to the health of the alleged mentally incapacitated person or unsafe for the alleged mentally incapacitated person or others to do so. If the alleged mentally incapacitated person or any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than five days before the hearing, serve and file an answer to the complaint. Note: Source-R.R. 4:102-5; caption and text of former R. 4:83-5 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-6. Hearing; Judgment
(a) Trial. Unless a trial by jury is demanded by or on behalf of the alleged mentally incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of mental incapacity. If there is no jury, the court, with the consent of counsel for the alleged mentally incapacitated person, may take the testimony of a physician by telephone or may dispense with the physicians oral testimony and rely on the affidavits submitted pursuant to R. 4:86-2(b). Telephone testimony shall be recorded verbatim. (b) Motion for New Trial. A motion for a new trial shall be served not later than 30 days after the entry of the judgment. (c) Appointment of Guardian. If a guardian of the person or of the estate or of both the person and the estate is to be appointed, the court shall appoint and letters shall be granted to the mentally incapacitated persons spouse, if the spouse was living with the mentally incapacitated person as husband or wife at the time the mental incapacity arose, or to the mentally incapacitated persons next of kin; or if none of them will accept the appointment or if the court is satisfied that no appointment from among them will be in the best interests of the mentally incapacitated person, then the court shall appoint and letters shall be granted to such other person who will accept appointment as the court determines is in the best interests of the mentally incapacitated person. Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1. The judgment appointing the guardian shall fix the amount of the bond, unless dispensed with by the court. The order of appointment shall require the guardian of the estate to file with the court within 90 days of appointment an inventory specifying all property and income of the mentally incapacitated persons estate, unless the court dispenses with this requirement. Within this time period, the guardian of the estate shall also serve copies of the inventory on all next of kin and such other interested parties as the court may direct. The order shall also require the guardian to keep the Surrogate continuously advised of the whereabouts and telephone number of the guardian and of the mentally incapacitated person and to advise the Surrogate within 30 days of the mentally incapacitated persons death or of any major change in his or her status or health. Note: Source-R.R. 4:102-6(a)(b)(c), 4:103-3 (second sentence). Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraph (a) amended November 5, 1986 to be effective January 1, 1987; paragraphs (a) and (c) of former R. 4:83-6 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (c) amended July 12, 2002 to be effective September 3, 2002. 4:86-7. Regaining Mental Capacity
Upon the commencement of a separate action or upon the filing of a motion in the original cause by the mentally incapacitated person or an interested person on his or her behalf, supported by affidavit and setting forth facts evidencing that the previously mentally incapacitated person no longer is mentally incapacitated, the court shall, on notice to the persons who would be set forth in a complaint filed pursuant to R. 4:86-1, set a date for hearing, take oral testimony in open court with or without a jury, and may render judgment that the person no longer is mentally incapacitated, that his or her guardian be discharged subject to the duty to account, and that his or her person and estate be restored to his or her control. Note: Source-R.R. 4:102-7; former R. 4:83-7 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-8. Appointment of Guardian for Nonresident Mentally Incapacitated Person
An action for the appointment of a guardian for a nonresident who has been or shall be found to be a mentally incapacitated person under the laws of the state or jurisdiction in which the mentally incapacitated person resides shall be brought in the Superior Court pursuant to R. 4:67. The plaintiff shall exhibit and file with the court an exemplified copy of the proceedings or other evidence establishing the finding. If the plaintiff is the duly appointed guardian, trustee or committee of the mentally incapacitated person in the state or jurisdiction in which the finding was made, and applies to be appointed guardian in this State, the court may forthwith appoint that person without issuing an order to show cause. Note: Source-R.R. 4:102-8. Amended July 26, 1984 to be effective September 10, 1984; former R. 4:83-8 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-9. Guardians for Mentally Incapacitated Persons Under Uniform Veterans Guardianship Law
(a) Complaint for Appointment. An action for the appointment of a guardian under N.J.S.A. 3B:13-1 et seq. for a ward alleged to be a mentally incapacitated person shall be brought in the Superior Court by any person entitled to priority of appointment. If there is no person so entitled or if the person so entitled fails or refuses to commence the action within 30 days after the mailing of notice by a federal agency to the last known address of such person entitled to priority of appointment, indicating the necessity for the appointment, the action may be brought by any person residing in this State, acting on the wards behalf. (b) Complaint. The complaint shall state (1) the name, age and place of residence of the ward; (2) the name and place of residence of the nearest relative, if known; (3) the name and address of the person or institution, if any, having custody of the ward; (4) that such ward is entitled to receive money payable by or through a federal agency; (5) the amount of money due and the amount of probable future payments; and (6) that the ward has been rated a mentally incapacitated person on examination by a federal agency in accordance with the laws regulating the same. (c) Proof of Necessity for Guardian of Mentally Incapacitated Person. A certificate by the chief officer, or his or her representative, stating the fact that the ward has been rated a mentally incapacitated person by a federal agency on examination in accordance with the laws and regulations governing such agency and that appointment is a condition precedent to the payment of money due the ward by such agency shall be prima facie evidence of the necessity for making an appointment under this rule. (d) Determination of Mental Incapacity. Mental incapacity may be determined on the certificates, without other evidence, of two medical officers of the military service or of a federal agency, certifying that by reason of mental incapacity the ward is incapable of managing his or her property, or certifying to such other facts as shall satisfy the court as to such mental incapacity. (e) Appointment of Guardian; Bond. Upon proof of notice duly given and a determination of mental incapacity, the court may appoint a proper person to be the guardian and fix the amount of the bond. The bond shall be in an amount not less than that which will be due or become payable to the ward in the ensuing year. The court may from time to time require additional security. Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1. (f) Termination of Guardianship When Ward Regains Mental Capacity. If the court has appointed a guardian for the estate of a ward, it may subsequently, on due notice, declare the ward to have regained mental capacity on proof of a finding and determination to that effect by the medical authorities of the military service or federal agency or based on such other facts as shall satisfy the court as to the mental capacity of the ward. The court may thereupon discharge the guardian without further proceedings subject to the settlement of his or her account. (g) Complaint in Action to Have Guardian Receive Additional Personalty. The complaint in an action to authorize the guardian, pursuant to law, to receive personal property from any source other than the United States Government shall set forth the amount of such property and the name and address of the person or institution having actual custody of the ward. (h) Definitions. Definitions contained in N.J.S.A. 3B:13-2 shall apply to the terms of this rule. Note: Source-R.R. 4:102-9(a) (b) (c) (d) (e) (f) (g) (h), 4:103-3 (second sentence). Paragraph (a) amended July 22, 1983 to be effective September 12, 1983; paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) through (f) and (h) of former R. 4:83-9 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; caption amended, paragraphs (a) and (b) amended, paragraphs (c) and (d) captions and text amended, paragraph (e) amended, and paragraph (f) caption and text amended July 12, 2002 to be effective September 3, 2002. 4:86-10. Appointment of Guardian for Persons Receiving Services From the Division of Developmental Disabilities
An action pursuant to N.J.S.A. 30:4-165.7 et seq. for the appointment of a guardian for a person over the age of 18 who is receiving services from the Division of Developmental Disabilities shall be brought pursuant to these rules insofar as applicable, except that: (a) The complaint may be brought by the Commissioner of Human Services or a parent, spouse, relative or other party interested in the welfare of such person. (b) In lieu of the affidavits prescribed by R. 4:86-2 the verified complaint shall have annexed thereto two affidavits. One affidavit shall be submitted by the chief executive officer, medical director, or other officer having administrative control over a Division of Developmental Disabilities program servicing the alleged mentally incapacitated person and the other shall be submitted by a physician licensed to practice in New Jersey or a psychologist licensed pursuant to N.J.S.A. 45:14B-1 et seq. The affidavit shall set forth with particularity the alleged mentally incapacitated persons significant chronic functional impairment, as that item is defined in N.J.S.A. 30:4-165.8, and the facts supporting the affiants belief that as a result thereof, the person lacks the cognitive capacity either to make decisions or to communicate decisions to others. (c) If the petition seeks guardianship of the person only, the Office of the Public Defender, if available, shall be appointed as attorney for the alleged mentally incapacitated person, as required by R. 4:86-4. If the Office of the Public Defender is unavailable or if the petition seeks guardianship of the person and the estate, the court shall appoint an attorney other than the Public Advocate to represent the alleged mentally incapacitated person. The attorney for the alleged mentally incapacitated person may where appropriate retain an independent expert to render an opinion respecting the mental incapacity of the alleged mentally incapacitated person. (d) The hearing shall be held pursuant to R. 4:86-6 except that a guardian may be summarily appointed if the attorney for the alleged mentally incapacitated person, by affidavit, does not dispute either the need for the guardianship or the fitness of the proposed guardian and if a plenary hearing is not requested either by the alleged mentally incapacitated person or on his or her behalf. Note: Adopted July 7, 1971 to be effective September 13, 1971; amended July 24, 1978 to be effective September 11, 1978. Former rule deleted and new rule adopted November 5, 1986 to be effective January 1, 1987; caption amended and paragraphs (b), (c) and (d) of former R. 4:83-10 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c) amended June 28, 1996 to be effective September 1, 1996; paragraphs (b), (c), and (d) amended July 12, 2002 to be effective September 3, 2002. 4:86-11. Appointment of Conservator
(a) Commencement of Action; Complaint. An action pursuant to N.J.S.A. 3B: 13A-1 et seq. for the appointment of a conservator shall be brought by a conservatee or other person on his or her behalf on notice, as provided by N.J.S.A. 3B: 13A-5 and 6. The complaint shall be filed in the Superior Court and shall state (1) the conservatees age and residence, (2) the names and addresses of the conservatees heirs and all other persons entitled to notice pursuant to N.J.S.A. 3B: 13A-6, and (3) the nature, location and fair market value of all property, real and personal, in accordance with R. 4:86-2(a). (b) Hearing. The court, without a jury, shall take testimony in open court to determine whether the conservatee, by reason of advanced age, illness or physical infirmity, is unable to care for or manage his or her property or has become unable to provide for himself or herself or others dependent upon him or her for support. The court may appoint counsel for the conservatee if it concludes that counsel is necessary to protect his or her interests. If the conservatee is unable to attend the hearing by reason of physical or other disability, the court shall appoint a guardian ad litem to conduct an investigation to determine whether the conservatee objects to the conservatorship. If counsel for the conservatee has, however, been appointed, such counsel shall conduct the investigation and no separate guardian ad litem shall be appointed. In no case shall a conservator be appointed if the court finds that the conservatee objects thereto. (c) Acceptance of Appointment. An acceptance of appointment as conservator may be taken before any person authorized by the laws of this State to administer an oath. (d) Settlement of Conservators Account. Where the court, for good cause shown, orders a full accounting by the conservator, the account shall be settled in the Superior Court in accordance with R. 4:87, insofar as applicable. Note: Adopted July 26, 1984 to be effective September 10, 1984; paragraphs (a), (b) and (c) of former R. 4:83-11 amended and rule redesignated June 29, 1990 to be effective September 4, 1990. 4:86-12. Special Medical Guardian
(a) Standards. On the application of a hospital, nursing home, treating physician, relative or other appropriate person under the circumstances, the court may appoint a special guardian of the person of a patient to act for the patient respecting medical treatment consistent with the courts order, if it finds that: (1) the patient is mentally incapacitated, unconscious, underage or otherwise unable to consent to medical treatment; (2) no general or natural guardian is immediately available who will consent to the rendering of medical treatment; (3) the prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patients life or health; and (4) the patient has not designated a health care representative or executed a health care instruction directive pursuant to the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 to -78, determining the treatment question in issue. (b) Venue. The application shall be made to the Superior Court judge assigned to general equity in the vicinage in which the patient is physically located when the application is made and, in the event of that judges unavailability, to the Assignment Judge of the vicinage or the judge designated as the emergent judge, or if neither is available, any judge in the vicinage. (c) Procedure. The procedure on the application shall conform as nearly as practicable to the requirements of R. 4:86-1 to R. 4:86-6, but the judge may, if the circumstances require, accept an oral complaint and oral testimony either by telephone, in court, or at any other suitable location. If the circumstances do not permit the making of a verbatim record, the judge shall make detailed notes of the allegations of the complaint and the supporting testimony. Whenever possible an attorney shall be appointed to represent the patient. (d) Order. The order granting the application, if orally rendered, shall be reduced to writing as promptly as possible and shall recite the findings on which it is based. Note: Adopted November 1, 1985 to be effective January 2, 1986; paragraphs (a), (b) and (c) of former R. 4:83-12 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (a) amended July 14, 1992 to be effective September 1, 1992; paragraph (a)(1) amended July 12, 2002 to be effective September 3, 2002.