New Law in Amends the States Guardianship Law

This new law revises numerous sections of chapter 12 of Title 3B of the New Jersey Statutes concerning guardianship. This new law clarifies the court's authority with regard to addressing the immediate needs of an incapacitated person. The new law establishes procedures for the appointment of a general guardian, a limited guardian of the person, estate or of both, a special guardian or a temporary "pendente lite" guardian who would act on behalf of the incapacitated person with regard to his medical, financial, educational, legal or vocational needs. It sets forth the powers and duties of the guardian, when a bond must be furnished by a guardian and when reasonable compensation for services would be granted. The new law expands the current reporting procedures for guardians. In addition, the new law revises various sections throughout chapter 12 of Title 3B by deleting all references to "mental incompetent" and replacing them with "incapacitated or alleged incapacitated" to provide uniformity and consistency in these sections.

This new law, effective in 2006, clarifies the court's authority with regard to addressing the immediate needs of an incapacitated person. The new law establishes procedures for the appointment of a general guardian, a limited guardian of the person, estate or of both, a special guardian or a temporary "pendente lite" guardian who would act on behalf of the incapacitated person with regard to his medical, financial, educational, legal or vocational needs. It sets forth the powers and duties of the guardian, when a bond must be furnished by a guardian and when reasonable compensation for services would be granted. The new law expands the current reporting procedures for guardians. In addition, the new law revises various sections throughout chapter 12 of Title 3B by deleting all references to "mental incompetent" and replacing them with "incapacitated or alleged incapacitated" to provide uniformity and consistency in these sections.

The pertinent provisions in the new law are as follows: Section 4: N.J.S.A. 3B:12-4. (Appointment of special guardian) Current law authorizes the court to appoint a special guardian to assist the court in providing for any protective arrangements. This provision remains unchanged by the new law. The new law provides that if a special guardian is appointed, the guardian is entitled to reasonable fees for services as well as reimbursement for reasonable expenses.

Section 7: N.J.S.A. 3B:12-11. (Affidavit of receipt) This section requires filing of an affidavit by the recipient for money or property in connection with the guardianship of a minor. If the minor resides outside the State, the filing is in the county which has jurisdiction over the property.

Section 12: (New section). (Determination by the court of need for guardianship services) This section of the new law supplements the current law by specifically outlining the different types of guardians and their powers and duties.

General Guardian -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 general guardian who will exercise all rights and powers of the incapacitated person. The general guardian must furnish a bond unless relieved by the court.

Limited Guardian. If the court finds a person is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself, the court can appoint a limited guardian of the person, limited guardian of the estate, or limited guardian of both. The court must make specific findings as to the person's decision making capacity with regard to residential, education, medical, legal, vocational and financial decisions. A judgment of limited guardianship may specify the limitations upon the authority or the areas of decision making retained by the person. The limited guardian must furnish a bond unless relieved by the court.

Pendente lite; Temporary Guardian. Whenever a complaint is filed in court to declare a person incapacitated and to appoint a guardian, the complaint may also request the appointment of a temporary guardian of the person or estate, or both, pendente lite. Pending a hearing for the appointment of a guardian, the court may for good cause shown appoint a pendente lite temporary guardian upon a finding that there is a critical need or risk of substantial harm. If appointed the temporary guardian may be granted authority to arrange interim services or temporary accommodations.

Payments for such services may be made from the estate of the alleged incapacitated person. A pendente lite temporary guardian appointed is limited to act for the alleged incapacitated person only for those services determined by the court to be necessary to deal with critical needs or risk of substantial harm to the alleged incapacitated person. Pendente lite temporary guardians are not designed to act as special medical guardians appointed under Rules of Court to authorize emergent medical or surgical intervention needed to deal with substantial threat to a person's life or health.

The attorney for the alleged incapacitated person is given notice of the appointment. The pendente lite temporary guardian is required to advise the attorney of all actions and the attorney would have the right to object. A pendente lite temporary guardian appointment does not have the effect of an adjudication of incapacity or effect of limitation on the legal rights of the individual other than those specified in the court order. The pendente lite temporary guardian, upon application to the court, would be entitled to receive reasonable fees for his services, as well as reimbursement of his reasonable expenses, which would be payable by the estate of the alleged incapacitated person or minor. The pendente lite temporary guardian would be required to furnish a bond, unless the court relieves him of doing so. This sections also addresses the following: disclosure of information; court appearance; communication; enlarging or limiting guardianship powers.

Section 13: N.J.S.A. 3B:12-25. (Appointment of guardian) Clarifies that letters of guardianship may be granted to the spouse or registered domestic partner if the person is living with the alleged incapacitated person or his heirs, or if none of them will accept letters thereafter to the Office of Public Guardian for Elderly Adults. Consideration may be given to the surrogate decision-makers, if any, chosen by the incapacitated person by way of a durable power of attorney, health care proxy or advance directive.

Section 16: N.J.S.A. 3B:12-28. (Return to competency) Clarifies that the court may, on a summary action filed by the person adjudicated incapacitated or the guardian, adjudicate that the person has returned to full or partial competency and restore his civil rights and estate.

Section 28: N.J.S.A. 3B:12-41. (Guardian of ward's person entitled to reimbursement for expenses) Clarifies that the guardian will receive reasonable reimbursement and fees for his services.

Section 29: N.J.S.A. 3B:12-42. (Reporting condition of ward's person and property to court) Expands the reporting requirements for guardians in order to provide uniformity and consistency. This section sets forth when the report should be made and what it must contain. Exempts from this reporting requirement the Bureau of Guardianship Services in the Division of Developmental Disabilities, the Public Guardian, and public officials appointed as limited guardians for individuals in psychiatric facilities for medical purposes.

Section 30: N.J.S.A. 3B:12-43. (Expenditures to be made by guardian out of ward's estate.) Requires a guardian to follow the requirements of the "Prudent Investor Act" when dealing with the assets of the ward.

Section 35: N.J.S.A. 3B:12-48. (Powers conferred upon a guardian) Clarifies that the guardian has the power to file or defend any litigation on behalf of the ward, including but not limited to, the right to bring an action for divorce or annulment on any grounds authorized by law.

Section 36: N.J.S.A. 3B:12-49. (Powers conferred upon a court) Clarifies that among the court's powers with regard to a ward and his estate is the power to exercise the ward's right to an elective share in the estate of the ward's deceased spouse or registered domestic partner and to engage in planning the use of public assistance programs.

Section 38: N.J.S.A. 3B:12-56. (Powers, rights and duties of a guardian of a ward) Clarifies the powers, rights and duties of a guardian of a ward. Provides that a guardian is not legally obligated to provide for the ward from his own funds and is not liable to a third person for acts of the ward solely by reason of the relationship and is not liable to the ward for injury resulting from wrongful conduct of a third person. A guardian is required to act consistently with a previously executed valid power of attorney for health care or advance directive. To the extent ordered by a court, the guardian can initiate the voluntary admission of a ward to a psychiatric facility with all of the rights of a voluntarily admitted patient. If the ward objects, the State's procedures for involuntary commitment apply.

Section 39: N.J.S.A. 3B:12-57. (Powers and duties of a guardian of a person) Clarifies that a guardian of the person of a ward is required to exercise authority over matters relating to the ward's personal needs only to the extent ordered by the court. Provides that a guardian is required to give due regard to the preferences of the ward. The guardian shall exercise care to conserve any excess funds. The guardian may institute an action that could be maintained by the ward including actions alleging fraud, abuse, undue influence and exploitation.

Section 45: N.J.S.A. 3B:12-64. Clarifies that the guardian may make final burial and funeral arrangements if the body remains unclaimed for five days and may pay for these costs and surrogate fees.

Section 46: N.J.S.A. 3B:12-66. Clarifies that the Superior Court, or the Surrogate's court in the case of a minor, shall have jurisdiction to fill a vacancy by the appointment of a substituted guardian.

Section 47: N.J.S.A. 3B:22-2. Provides an order of payment if the applicable assets of the estate are insufficient to pay all claims in full. Clarifies that the debts for the reasonable value of services rendered to the decedent by the Office of the Public Guardian will be paid before certain other claims.

New sections 48 and 49. These sections establish procedures for transfer of guardianship services when a guardian in this State is seeking to move to another state and when a guardian in another state is seeking to transfer services into New Jersey.

Other provisions of the new law. The remaining sections of the new law replace the term "mental incompetent" with "incapacitated or alleged incapacitated" person.

Sections 18, 20, 21, 36, 39 (N.J.S.A. 3B:12-30, N.J.S.A. 3B:12-32, N.J.S.A. 3B:12-33, N.J.S.A. 3B:12-49, N.J.S.A. 3B:12-57) include the reference to "domestic partner" where appropriate. The committee amendments are technical in nature. In section 11 they include a missing reference to "incapacitated person" in the last sentence; in section 12 they correct two typos: the use of "appropriately" and the insertion of "person."

To schedule a consultation regarding Guardianship of Adults, call the Law Office of Kenneth Vercammen, Esq. at (732) 572-0500

Kenneth A. Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Elder Law and litigation topics. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, Probate hearings and contested administrative law hearings.