S2622

An Act concerning temporary guardianships and amending P.L.2005, c.304

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 12 of P.L.2005, c.304 (C.3B:12-24.1) is amended to read as follows:

12. Determination by the court of need for guardianship services, specific services.

a. General Guardian. If the court finds that an individual is incapacitated as defined in N.J.S.3B:1-2 and is without capacity to govern himself or manage his affairs, the court may appoint a general guardian who shall exercise all rights and powers of the incapacitated person. The general guardian of the estate shall furnish a bond conditioned as required by the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.

b. Limited Guardian. If the court finds that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself, the court may appoint a limited guardian of the person, limited guardian of the estate, or limited guardian of both the person and estate. A court, when establishing a limited guardianship shall make specific findings regarding the individual's capacity, including, but not limited to which areas, such as residential, educational, medical, legal, vocational and financial decision making, the incapacitated person retains sufficient capacity to manage. A judgment of limited guardianship may specify the limitations upon the authority of the guardian or alternatively the areas of decision making retained by the person. The limited guardian of the estate shall furnish a bond in accordance with the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.

c. Pendente lite; Temporary Guardian.

(1) Whenever a complaint is filed in the Superior Court to declare a person incapacitated and appoint a guardian, the complaint may also request the appointment of a temporary guardian of the person or estate, or both, pendente lite. Notice of a pendente lite temporary guardian application, including the reason why pendente lite action is required, and the name, address, employer, and curriculum vitae of any proposed temporary guardian, shall be given to the alleged incapacitated person [or] and the alleged incapacitated person’s attorney or the attorney appointed by the court to represent the alleged incapacitated person, and, if known, to the alleged incapacitated person’s next of kin including a spouse or domestic partner, children, parents, and siblings 18 years of age or over, and, if known, to 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.

(2) Pending a hearing for the appointment of a guardian, the court may for good cause shown and upon a finding that there is [a] an imminent critical need or imminent risk of substantial harm, including, but not limited to:

(a) the physical or mental health, safety and well-being of the person may be imminently harmed or jeopardized;

(b) the property or business affairs of the person may be imminently repossessed, wasted, misappropriated, dissipated, lost, damaged or diminished or not appropriately managed;

(c) it is in the best interest of the alleged incapacitated person to have a temporary guardian appointed and such may be dealt with before the hearing to determine incapacity can be held, [after any notice as the court shall direct] upon the notices required pursuant to paragraphs (1) and (5) of this subsection, appoint a temporary guardian pendente lite of the person or estate, or both, of the alleged incapacitated person.

(3) A pendente lite temporary guardian appointed pursuant to this section may be granted authority to arrange interim financial, social, medical or mental health services or temporary accommodations for the alleged incapacitated person determined to be necessary to deal with imminent critical needs of or imminent risk of substantial harm to the alleged incapacitated person or the alleged incapacitated person’s property or assets. The pendente lite temporary guardian may be authorized to make arrangements for payment for such services from the estate of the alleged incapacitated person. The pendente lite temporary guardian shall submit an itemized accounting to the court, the plaintiff, the alleged incapacitated person’s attorney or attorney appointed by the court to represent the alleged incapacitated person, and to such other interested persons as the court may direct, for all such payments made.

(4) A pendente lite temporary guardian appointed hereunder shall be limited to act for the alleged incapacitated person only for those services determined by the court to be necessary to deal with imminent critical needs or imminent risk of substantial harm to the alleged incapacitated person. To the greatest extent practicable, the pendente lite temporary guardian shall maintain the alleged incapacitated person’s property, personal affairs, and business affairs in a status quo condition. Any sale, gift, or disposal of the alleged incapacitated person’s property, and any waiver of a legal claim or cause of action accruing to the alleged incapacitated person, by the pendente lite temporary guardian shall require specific authorization from the court upon the notices required pursuant to paragraphs (1) and (5) of this subsection.

(5) [The alleged incapacitated person’s attorney or attorney appointed by the court to represent the alleged incapacitated person shall be given notice of the appointment of the pendente lite temporary guardian.] Notice of the appointment of a pendente lite temporary guardian shall be given to the alleged incapacitated person and the alleged incapacitated person’s attorney or the attorney appointed by the court to represent the alleged incapacitated person, and, if known, to the alleged incapacitated person’s next of kin including a spouse or domestic partner, children, parents, and siblings 18 years of age or over, and, if known, to 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 pendente lite temporary guardian shall communicate all actions taken on behalf of the alleged incapacitated individual to the alleged incapacitated person’s attorney or attorney appointed by the court to represent the alleged incapacitated person, and to such other interested persons as the court may direct, who shall have the right to object to such actions.

(6) A pendente lite temporary guardian appointment shall 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.

(7) If the court enters an order appointing a pendente lite temporary guardian without [notice] a hearing, the alleged incapacitated person, or an interested person on his or her behalf, may appear and move for its dissolution or modification on two days’ notice to the plaintiff and to the temporary guardian or on such shorter notice as the court prescribes.

(8) Every order appointing a pendente lite temporary guardian granted without [notice] a hearing expires as prescribed by the court, but within a period of not more than 45 days, unless within that time the court, upon notice and hearing, extends it for good cause shown for the same period. If the order is extended and the pendente lite temporary guardian has not already done so, the pendente lite temporary guardian shall undergo such background screening, guardianship training, and Guardianship Monitoring Program reporting as the court may direct pursuant to Court Rule or order, directive, or policy of the Administrative Director of the Courts.

(9) The pendente lite temporary guardian, upon application to the court, shall be entitled to receive reasonable fees for his services, as well as reimbursement of his reasonable expenses, which shall be payable by the [estate of the alleged incapacitated person or minor] plaintiff. No payment from the plaintiff to the pendente lite temporary guardian shall be made unless authorized by the court.

(10) The pendente lite temporary guardian shall furnish a bond in accordance with the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court upon good cause shown why such relief is appropriate.

(11) If a pendente lite temporary guardian is appointed and the court, following a hearing, finds that the alleged incapacitated person was not incapacitated while under temporary guardianship, the alleged incapacitated person shall have an action in equity for the rescission ultra vires of any contract entered into or gifts made by the pendente lite temporary guardian in the name of the alleged incapacitated person. The pendente lite temporary guardian may seek indemnification from the plaintiff of the guardianship action.

d. Disclosure of information. Physicians and psychologists licensed by the State are authorized to disclose medical information, including but not limited to medical, mental health and substance abuse information as permitted by State and federal law, regarding the alleged incapacitated person in affidavits filed pursuant to the Rules Governing the Courts of the State of New Jersey.

e. Court appearance. The alleged incapacitated person shall appear in court unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity.

f. Communication. When a person who is allegedly in need of guardianship services appears to have a receptive or expressive communication deficit, all reasonable means of communication with the person shall be attempted for the purposes of this section, including written, spoken, sign or non-formal language, which includes translation of the person's spoken or written word when the person is unable to communicate in English, and the use of adaptive equipment.

g. Additional subject areas. At the request of the limited guardian, and if the incapacitated person is not represented, after appointment of an attorney for the incapacitated person and with notice to all interested parties, the court may determine that a person is in need of guardian services regarding additional subject areas and may enlarge the powers of the guardian to protect the person from significant harm.

h. Limitations of guardian powers. At the request of the guardian, the incapacitated person or another interested person, and if the incapacitated person is not represented, after appointment of an attorney for the incapacitated person and with notice to all interested parties, the court may limit the powers conferred upon a guardian.

(cf: P.L.2005, c.304, s.12)

2. This act shall take effect immediately.

STATEMENT

This bill amends the law concerning the appointment of pendente lite temporary guardians for an alleged incapacitated person.

Under current law, the plaintiff in a guardianship action may seek the appointment of a temporary guardian on an emergent basis, prior to a hearing to determine whether a person is actually incapacitated and in need of guardianship. Because of its emergent nature, the court can grant the appointment without a hearing. While there are situations where an alleged incapacitated person may suffer imminent harm if a temporary guardian is not appointed, the likelihood of such harm must be weighed against the person’s constitutional privacy and liberty interests.

Under the bill, an application for pendente lite temporary guardianship must state the reason why emergent action is required and must make certain disclosures about any proposed temporary guardian. The bill provides that the court should appoint a temporary guardian only if there is an imminent risk of harm to the alleged incapacitated person.

Under current Court Rule 4:86-2, a petition for guardianship must list the alleged incapacitated person’s next of kin including a spouse or domestic partner, children, and parents, and 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. In conformity with Court Rule 4:86-2, the bill requires that those same persons receive notice of both the application for pendente lite temporary guardianship and the order granting the appointment.

To increase the accountability of temporary guardians, the bill requires that any payments for interim financial, social, medical, or housing services made by the temporary guardian from the alleged incapacitated person’s estate must be itemized and submitted to both the court and the alleged incapacitated person’s attorney. The bill also requires the temporary guardian to maintain the status quo of an alleged incapacitated person’s property, personal affairs, and business affairs, and requires court approval for any sale, gift, or disposal of assets. Additionally, while the temporary guardian may receive a reasonable fee and reimbursement of expenses, the bill requires that these fees and expenses must be court authorized and are payable by the plaintiff.

Under the bill, if the court appoints a temporary guardian on an emergent basis and later finds after a hearing that a temporary guardian should not have been appointed, the alleged incapacitated person has the right of equitable rescission of any contract or gift made by the temporary guardian.

Finally, because a temporary guardian is appointed on an emergent basis and only meant to serve for 45 days pending the outcome of the hearing to determine actual incapacity, a temporary guardian may be ordinarily exempt from the background screening and training requirements normally required of all proposed guardians. However, if the court extends the appointment after 45 days, bill requires temporary guardians to undergo these procedures.

In the sponsor’s view, the guardianship process requires additional safeguards to prevent frivolous litigation, the wrongful disposal of a person’s assets or the incursion of debt, abuse of the judicial process, and the unjust deprivation of personal autonomy.