Guardianships of Incapacitated Persons
Pursuant to P.L.2005, c.304 effective January 11, 2006 find the following amendments and supplements to various sections of Title #B of the New Jersey Statues – General Guardian, Limited Guardian and Temporary Guardian
Appointment of a General Guardian
If the court finds an individual is incapacitated 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.
Appointment of a 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 the 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.
Appointment of a Temporary Guardian (Pendente lite)
Whenever a complaint is filed in the Superior Court to declare a person incapacitated and appoint a guardian, the complaint may 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 case shown and upon a finding that there is a critical need or risk of substantial harm to the physical or mental health, safety and well-being of the person, the property or business affairs of the person may be repossessed, wasted, misappropriated, dissipated, lost, damaged or diminished or not appropriately managed and/or it is in the best interest of the alleged incapacitated person to have a temporary guardian appointed. The pendente lite temporary guardian 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 critical needs of or risk of substantial harm to the alleged incapacitated person or the alleged incapacitated person’s property or assets. The pendente lite temporary guardian 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.
Appointment of Conservator
An action pursuant to N.J.S.A. 3B13A-1 brought by a conservator (person appointed by the Court to manage the estate of one who is unable to manage property and business affairs effectively) or any other person on his/her behalf on notice as provided by N.J.S.A. 3B13A-5 and 6. The Court takes testimony as to whether the conservatee is unable to provide for himself/herself or manage his property. The Court may appoint counsel for the conservatee if necessary. If the conservatee is unable to attend the Court hearing and does not have a court appointed counsel a Guardian Ad Litem is appointed to conduct an investigation as to whether the conservatee objects to a conservatorship. In no case is a conservator appointed if the Court finds the conservatee objects. The conservator, under oath, accepts the appointment. The Court may order a full accounting by the conservator in accordance with R. 4-87, when applicable.
Special Medical Guardianship
An action pursuant to R.4:86-12 heard before a General Equity Judge of the Superior Court, or if unavailable, the Assignment Judge. The action is taken on the application of a hospital, nursing home, treating physician, relative or other appropriate person under the circumstances. It is a Court appointment of a guardian to act for a patient respecting life threatening medical treatment. The attorney files the Complaint with the Surrogate and once the order is signed, the Order acts as a certificate. The Surrogate’s office does not issue anything.
The designation of a standby guardian is made pursuant to N.J.S.A. 3B:12-72. A custodial parent or legal custodians who face the prospect of a progressive chronic disability or a fatal illness can petition the Superior Court for a standby guardian (a legal custodial arrangement) of a minor child or children. This will allow the custodial parent or legal custodians to make plans for the future permanent care or interim care of a child or children without terminating existing parental or legal rights.
An action pursuant to R. 4-86-10 and N.J.S.A. 30:4-165.7, et seq. whereby and individual who is receiving services from the Division of Developmental Disabilities is declared incapacitated and a guardian is appointed of the individual’s person and/or property.
A Public defender is usually appointed counsel if guardianship of person only. If the Public Guardian is not available an application seeks guardianship of estate, local attorney appointed as counsel.
A hearing is held and a guardian may be summarily appointed by the Judge.