GANJI Reform Becomes a Reality in New Jersey

New Jersey, January 20, 2006 – Substantial amendments to New Jersey’s guardianship statutes were signed into law on January 11, 2006 and are effective immediately. Attempting to improve protections for the legal rights of New Jersey’s most vulnerable citizens, the new legislation acknowledges different types of guardianship, such as temporary guardianship, limited guardianship, special guardianship and full guardianship. It requires all participants in the guardianship process to consider and respect the decision-making abilities of the incapacitated person and to encourage self-determination where possible. GANJI actively supported the new reforms.  Some of the changes include:

Determination of Capacity  Provides that either a ward or a guardian may petition the court for restoration to competency.

Choosing  a Guardian

• Directs the court to consider surrogate decision-maker designated by the individual in a power of attorney, health care proxy or advance directive in selecting a guardian.

• Gives priority to a “registered domestic partner” as well as a spouse in the selection of guardian. 

Authority and Scope of Guardianship

• Permits the court to appoint a limited guardian when an incapacitated person can do some but not all tasks to care for himself or herself.

• Permits the appointment of a temporary guardian on notice to the alleged incapacitated person and his or her court-appointed attorney pending the final hearing if there is risk of substantial harm.

• Permits the guardian to initiate litigation, including actions alleging fraud, abuse, undue influence and exploitation, or defend litigation on behalf of the alleged incapacitated person.

• Permits the guardian to engage in planning concerning public assistance programs consistent with current law.

• Provides that a guardian is not legally obligated to provide for the ward from the guardian’s own funds and is not liable to a third party for acts of the ward solely by reason of the guardianship relationship.

• States that a guardian is not liable for injury to the ward from conduct of a care provider unless the guardian failed to exercise reasonable care in choosing the provider.

• Provides that generally a guardian is bound by the ward’s previously executed health care power of attorney or advance directive unless otherwise directed by the court.

• Allows the guardian, to the extent specifically ordered by the court for good cause shown, to initiate voluntary admission of the ward to a state or private psychiatric facility.

• Permits the guardian to sell or dispose of the ward’s personal property, including vehicles, to meet the ward’s needs.

Duties of  the Guardian

• Requires the guardian to give due regard to the preferences of the ward and encourage the ward’s participation in decision-making.

• Requires the guardian to personally visit the ward every three months or in such intervals as deemed appropriate by the court and to maintain sufficient contact to know the ward’s capacities, limitations and needs.

Guardian Accountability            

• Requires the guardian to report annually to the court on the ward’s condition and the ward’s estate, and specifies the content of the guardian’s report.

• Requires the guardian to abide by the “Prudent Investor Act” in handling the ward’s assets.

On January 12, 2006, legislation governing professional guardians also was signed into law. The legislation, which becomes effective 180 days from that date, requires those professional guardians with five or more wards unrelated to them to register with the office of New Jersey’s Public Guardian.

Prepared by Shirley B. Whitenack, Esq.