KEY DIFFERENCES BETWEEN EXISTING LAW AND THE PROPOSED BILL

S-224/A-1240/A-1922 (Singer/Malone/Weinberg)

 

PREPARED BY NEW JERSEY STATE BAR ASSOCIATION

SEPTEMBER, 2004

 

EXISTING LAW

PROPOSED BILL AMENDMENTS

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

 

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

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.

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.

N.J.S.A. 3B:12-25


Provides the Superior Court may

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.

 

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

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.

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.

 

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

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.

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.

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