KEY DIFFERENCES BETWEEN EXISTING LAW AND THE PROPOSED BILL
S-224/A-1240/A-1922 (Singer/Malone/Weinberg)
SEPTEMBER, 2004
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EXISTING LAW |
PROPOSED
BILL AMENDMENTS |
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N.J.S.A. 3B:12-1 The court may order a protective arrangement if it can be
established that a minor, mental incompetent or person not in being: n has property or an interest therein which may be wasted or
dissipated n or that a basis exists for affecting the property or interest
and affairs of a minor, mental incompetent or person not in being n or that funds are needed for the support, care and welfare of
the minor or mental incompetent or those entitled to be supported by him. |
n Amends N.J.S.A. 3B:12-1
to substitute the term “alleged mentally incapacitated person” for the term
“mental incompetent” -- term “mentally
incapacitated person” is substituted for “mental incompetent” throughout bill
text |
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N.J.S.A. 3B:12-4 Permits the court to appoint a special guardian to assist in the
accomplishment of any protective arrangement. |
Amends N.J.S.A. 3B:12-4
to provide that a special guardian is entitled to receive reasonable
compensation |
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N.J.S.A. 3B:12-16 Requires a testamentary guardian of a minor to give bond in
accordance with N.J.S.A. 3B:15-1 before receiving
letters unless a will directs otherwise |
Amends N.J.S.A.
3B:12-16 to permit the court to issue an order relieving a testamentary
guardian from posting a bond in accordance with N.J.S.A.3B:15-1. |
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N.J.S.A. 3B:12-24 Provides in civil action to determine mental
incompetency or for the appointment of a guardian for an alleged mental
incompetent, the trial of the issue of mental incompetency may be had without
a jury unless a trial by jury is demanded by the alleged mental incompetent
or someone on his behalf. |
Supplements N.J.S.A.
3B:12-24 to: n Permit
the court to appoint a limited guardian where a mentally incapacitated
person can do some tasks necessary to care for himself. n Permit
appointment of a temporary guardian pending a hearing for the
appointment of a guardian to deal with a critical need or a risk of
substantial harm to an alleged mentally incapacitated person. |
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N.J.S.A. 3B:12-25
n
determine the mental incompetency of an
alleged mental incompetent n
appoint a guardian for his person n
appoint a guardian for his estate n
appoint or a guardian for his person
and estate. Letters of guardianship shall be granted to: n a spouse n or to heirs n or if
none of them will accept the letters or it is proven to the court that no appointment
from among them will be to the best interest of the incompetent or his
estate, then to any other proper person as will accept the same. |
Supplements N.J.S.A.
3B:12-25 to direct that when appointing a guardian the court must give consideration
to surrogate decision-makers designated by the alleged incapacitated person
in a power of attorney, health care proxy or advance directive. |
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N.J.S.A. 3B:12-28 Permits
the court to adjudicate whether a mental incompetent has returned to full or
partial competency |
Amends
N.J.S.A. 3B:12-28 to clarify that an incapacitated person or
his or her guardian has the right to apply to the court to adjudicate whether
the incapacitated person has returned to competency |
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N.J.S.A. 3B:12-42 A guardian shall report the condition of the ward and the
condition of the ward's estate which has been subject to his possession or
control as ordered by the court in an action brought by a person interested
in the ward's welfare. |
Amends N.J.S.A. 3B:12-42
to: n require a
guardian to report annually to the court on a ward's condition and estate n specify
items that the report must contain n permit
the court to appoint an individual to review annual reports. |
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N.J.S.A. 3B:12-43 Provides that a guardian of the estate of a minor or mental
incompetent must exercise reasonable discretion when making expenditures from
a ward’s estate for the support, maintenance, education, general use and
benefit of the ward and his dependents. |
Amends N.J.S.A.
3B:12-43 to require a guardian to follow the requirements of the
"Prudent Investor Act" when dealing with the assets of the ward. |
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N.J.S.A. 3B:12-48 Defines
the powers of a guardian of the estate of a minor or mentally
incompetent |
Amends
N.J.S.A. 3B:12-48 to clarify that
the powers of the guardian shall specifically include the right to
file or defend any litigation on behalf of the ward |
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N.J.S.A. 3B:12-49 Provides that a court has all the powers over a ward’s estate
and affairs which the ward could exercise except the power to make a will,
and may confer those powers upon a guardian of the ward’s estate. |
Amends N.J.S.A.
3B:12-49 to clarify that the guardian has the power to engage in planning
utilizing public assistance programs consistent with current law. |
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N.J.S.A. 3B:12-56 Provides that a guardian of the person of a mental incompetent
has the same powers, rights and duties respecting his ward that a parent has
respecting his unemancipated minor child, except that he is not legally
obligated to provide for the ward from his own funds. |
Amends N.J.S.A.
3B:12-56 to describe the powers, rights and responsibilities of a guardian of
the person as follows: n a
guardian of an incapacitated person is not legally obligated to provide for
the ward from his own funds. n a guardian is not liable to a third person
for acts of the ward solely by reason of the relationship. n a
guardian is not liable for injury to the ward resulting from wrongful conduct
of a third person providing medical or other care, treatment or service for
the ward except to the extent that the guardian failed to exercise reasonable
care in choosing the provider n a
guardian, generally, shall be bound by a ward’s a previously executed valid
power of attorney for health care or advance directive n to the
extent specifically ordered by the court for good cause shown, the guardian
may initiate the voluntary admission of a ward to a State or private
psychiatric facility. |
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N.J.S.A.3B:12-57 A guardian has the power and duty to: n establish
the ward's place of abode. n make
provision for the care, comfort and maintenance of a ward and arrange for his
training and education, if entitled to custody of the ward. n take
reasonable care of his ward's clothing, furniture, vehicles and other
personal effects and institute an action for the appointment of a guardian of
the ward's estate, if necessary to protect it. n give
consent for the ward to receive medical or other professional care, counsel,
treatment or service. n institute
an action to compel the performance by any person of a duty to support the
ward or to pay sums for the welfare of the ward. n receive
money for the support of the ward and tangible personal property deliverable
to the ward. |
Supplements N.J.S.A.
3B:12-57 to require a guardian to: n give due
regard to the preferences of the ward and to require the guardian to
encourage the ward's participation in the decision-making process. n personally
visit the ward every three months, or as deemed appropriate by the court, and
otherwise maintain sufficient contact with the ward to know his capacities,
limitations, needs, opportunities and physical and mental health. n sell or
dispose of the ward's clothing, furniture, vehicles and other personal
effects to meet the current needs of the ward |