Guardianship in NJ requires affidavits of two physicians

Guardianship in NJ requires affidavits of two physicians

RULE 4:86. Action For Guardianship Of A Mentally Incapacitated Person Or For The Appointment Of A Conservator

4:86-1. Complaint

Every action for the determination of incapacity of a person and for the appointment of a guardian of that person or of the person's estate or both, other than an action with respect to a veteran under N.J.S.A. 3B:13-1 et seq., or with respect to a kinship legal guardianship under N.J.S.A. 3B:12A-1 et seq., shall be brought pursuant to Rule 4:86-1 through Rule 4:86-8 for appointment of a general, limited or pendente lite temporary guardian. The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person's spouse, if any; the plaintiff's relationship to the alleged incapacitated person; the plaintiff's interest in the action; the names, addresses and ages of the alleged incapacitated person's children, if any, and the names and addresses of the alleged incapacitated person's parents and nearest of kin; the name and address of the person or institution having the care and custody of the alleged incapacitated person; and if the alleged incapacitated person has lived in an institution, the period or periods of time the alleged 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 incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged 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; caption to Rule 4:86 amended, and text of Rule 4:86-1 amended July 9, 2008 to be effective September 1, 2008.

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 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 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 physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t or the affidavit of one such physician and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2.  Pursuant to N.J.S.A. 3B:12-24.1(d), the affidavits may make disclosures about the alleged incapacitated person.  If an alleged 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 incapacitated person is domiciled within this State but resident elsewhere, the affidavits required by this rule may be those of persons who are residents of the state or jurisdiction of the alleged incapacitated person's residence. Each affiant shall have made a personal examination of the alleged 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 affiant has treated or merely examined the alleged incapacitated individual; (3) whether the affiant is disqualified under R. 4:86-3; (4) the diagnosis and prognosis and factual basis therefor; (5) for purposes of ensuring that the alleged 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; (6) the affiant's opinion of the extent to which the alleged 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 incapacitated person upon which this opinion is based, including a history of the alleged incapacitated person's condition; and (7) if applicable, the extent to which the alleged incapacitated person retains sufficient capacity to retain the right to manage specific areas, such as, residential, educational, medical, legal, vocational or financial decisions. The affidavit should also include an opinion on whether the alleged incapacitated person is capable of attending the hearing and, if not, the reasons for the individual's inability.
• (c) In lieu of the affidavits provided for in paragraph (b), an affidavit of one affiant having the qualifications as required therein, stating that he or she has endeavored to make a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged 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; paragraphs (b) and (c) amended July 28, 2004 to be effective September 1, 2004; paragraphs (a), (b) and (c) amended July 9, 2008 to be effective September 1, 2008.

4:86-3. Disqualification of Affiant

No affidavit shall be submitted by a physician or psychologist who is related, either through blood or marriage, to the alleged 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 ill in which the alleged 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 psychologist, 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; caption and text amended July 28, 2004 to be effective September 1, 2004; amended July 9, 2008 to be effective September 1, 2008.

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  incapacitated person, any person named as attorney-in-fact in any power of attorney executed by the alleged  incapacitated person, any person named as health care representative in any health care directive executed by the alleged  incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged  incapacitated person, the alleged  incapacitated person's spouse or statutory partner, children 18 years of age or over, parents, the person having custody of the alleged  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 incapacitated person personally and upon each of the other persons in such manner as the court directs. The order for hearing shall expressly provide that appointed counsel for the alleged incapacitated person is authorized to seek and obtain medical and psychiatric information from all health care providers.  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  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 incapacitated person. Counsel shall (1) personally interview the alleged incapacitated person; (2) make inquiry of persons having knowledge of the alleged incapacitated person's 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 incapacitated person or to discover any interests the alleged 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 plaintiff's attorney and other parties who have formally appeared in the matter. The report shall contain the information developed by counsel's inquiry; shall make recommendations concerning the court's determination on the issue of 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  incapacitated person may be capable of exercising; and whether a case plan for the  incapacitated person should thereafter be submitted to the court. The report shall further state whether the alleged 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  incapacitated person be revoked or the authority of the person or persons acting thereunder be modified or restricted. If the alleged 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  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 incapacitated person and to present that evaluation to the court.
• (e) Compensation. The compensation of the attorney for the party seeking guardianship, 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 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; paragraph (e) amended July 27, 2006 to be effective September 1, 2006; paragraphs (a), (b), (c), (d) and (e) amended July 9, 2008 to be effective September 1, 2008.

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 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 shall produce the alleged incapacitated person at the hearing, unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity and the court finds that it would be prejudicial to the health of the alleged incapacitated person or unsafe for the alleged incapacitated person or others to do so. If the alleged 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, affidavit, or motion in response 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; caption and text amended July 9, 2008 to be effective September 1, 2008.

4:86-6. Hearing; Judgment

• (a) Trial. Unless a trial by jury is demanded by or on behalf of the alleged incapacitated person, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of incapacity. If there is no jury, the court, with the consent of counsel for the alleged incapacitated person, may take the testimony of a person who has filed an affidavit pursuant to R. 4:86-2(b) by telephone or may dispense with oral testimony and rely on the affidavits submitted. 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 General or Limited 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 incapacitated person's spouse, if the spouse was living with the incapacitated person as husband or wife at the time the incapacity arose, or to the incapacitated person's next of kin, or the Office of the Public Guardian for Elderly Adults for adults within the statutory mandate of that office, 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 incapacitated person or estate, 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 incapacitated person including registered professional guardians or surrogate decision-makers chosen by the incapacitated person before incapacity by way of a durable power of attorney, health care proxy, or advanced directive.
• (d)  Duties of Guardian.   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 incapacitated person's 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 incapacitated person, to advise the Surrogate within 30 days of the incapacitated person's death or of any major change in his or her status or health and to report on the condition of the incapacitated person and property as required by N.J.S.A. 3B:12-42.