Sponsored by:
Assemblywoman CAROL A. MURPHY
District 7 (Burlington)
Assemblyman RONALD S. DANCER
District 12 (Burlington, Middlesex, Monmouth and Ocean)
Assemblywoman VALERIE VAINIERI HUTTLE
District 37 (Bergen)
SYNOPSIS
Revises and updates law pertaining to guardianship to encourage ethical conduct by guardians and to provide stronger protections for wards and proposed wards.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning guardianship arrangements, supplementing chapter 12 of Title 3B of the New Jersey Statutes, and amending various sections of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. A ward or proposed ward shall be represented by counsel throughout the course of guardianship proceedings and, if a guardianship arrangement is established, until such time as the arrangement is terminated.
b. Counsel shall personally interview the ward or proposed ward, as the case may be, not more than 72 hours before each scheduled hearing related to guardianship, and shall certify to the court that the interview has been performed.
c. If the ward or proposed ward is, at any time, not represented by counsel and is unable to afford counsel, the court shall appoint counsel therefor.
2. N.J.S.3B:12-37 is amended to read as follows:
3B:12-37. Letters of guardianship to state any limitations at the time of appointment or later.
a. A court establishing a guardianship arrangement shall authorize the level of intervention that the court finds to be least restrictive of the proposed ward s rights while being consistent with the protection of the ward s welfare and safety. The basis for this finding shall be included in the record of the court.
b. A court may:
(1) either at the time a guardian is appointed or at any time thereafter while the guardianship arrangement is ongoing, expand or limit the powers of the guardian that have been conferred by this chapter or by a previous order of the court. If the court limits any power conferred on the guardian, the limitation shall be [so] expressly stated in [certificates of] the applicable letters of guardianship [thereafter issued]; and
(2) revoke or revise, at any time, the expansion or limitation of powers that has been ordered by the court pursuant to paragraph (1) of this subsection.
(cf: P.L.2005, c.304, s.25)
3. N.J.S.3B:12-38 is amended to read as follows:
3B:12-38. Title to ward's property vested in guardian as trustee.
a. The appointment
of a guardian of the estate of a minor or [an] incapacitated
person vests in [him] the
guardian title as trustee to all property of [his] the ward, presently held
or thereafter
acquired, including title to any property theretofore held for the ward by [attorneys in fact] attorneys-in-fact. The appointment of a guardian is not a transfer or alienation within the meaning of general provisions of any [Federal] federal or State statute or regulation, insurance policy, pension plan, contract, will, or trust instrument[, imposing] that imposes restrictions upon, or penalties for, the transfer or alienation by the ward of [his] the ward s rights or interest, but this section does not restrict the ability of [persons] any person to make specific provision by contract or dispositive instrument relating to a guardian.
b. If a court finds that a guardian of the estate of a minor or incapacitated person has breached the guardian s fiduciary duties to the ward by taking action that is outside the scope of the guardianship arrangement or that violates the rights of the ward, contradicts or violates the ward s best interests, or is otherwise deemed by the court to be improper for a fiduciary, the guardian of the estate shall be liable to the ward or other interested persons for damage or loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust.
(cf: P.L.2005, c.304, s.26)
4. N.J.S.3B:12-42 is amended to read as follows:
3B:12-42. Reporting condition of ward's person and property to court.
[A guardian shall report at] At time intervals [as] ordered by the court, [unless otherwise waived by the court,] but not less often than every six months during the course of a guardianship arrangement, the guardian shall report to the court, under oath, the condition of the ward and the condition of the ward's estate which has been subject to the guardian's possession or control as ordered by the court.
a. A report submitted by [the] a guardian of the person, pursuant to this section, shall state or contain:
(1) the current mental, physical, and social condition of the ward;
(2) the living arrangements for all addresses of the ward during the reporting period;
(3) the medical, educational, vocational, and other services provided to the ward, and the guardian's opinions as to the adequacy of the ward's care;
(4) a summary of the guardian's visits with the ward and activities undertaken by the guardian on the ward's behalf, and an indication as to the extent to which the ward has participated in decision-making;
(5) if the ward is institutionalized, an indication as to whether or not the guardian considers the current plan for care, treatment, or habilitation to be in the ward's best interest;
(6) plans for future care; and
(7) a recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship.
b. [The court may appoint an individual to review a report, interview the ward or guardian and make any other investigation the court directs] A report submitted by a guardian of the estate, pursuant to this section, shall state or contain:
(1)