Legislative / Court Activity
Amendments to Existing Guardianship Law are
Proposed
The New Jersey State Bar
Association has summarized proposed amendments to existing law embodied in
S-224/A-1240/A-1922
(Singer/Malone/Weinberg).
According to their summary, the bill amends several sections of the
New Jersey Revised Statutes pertaining to guardianships in order to
promote consideration of limited guardianship in all guardianship
proceedings and autonomy for mentally incapacitated individuals, wherever
possible.
The
proposed bill underscores the need for guardians and the courts to
safeguard the ward’s health, safety and welfare. The bill would
require the court to focus on whether the ward can retain decision-making
powers, and would permit the court to appoint a temporary guardian to
protect an alleged mentally incapacitated person, prior to adjudication of
mental incapacity, who faces a substantial risk of physical harm due to
circumstances beyond his or her control. It recognizes the concept
of a “limited” guardianship wherein the court would specifically
provide rights and powers the incapacitated person can retain. It further
sets forth specifically the powers and duties of the guardians. These
revisions protect, to the extent possible, the autonomy of the
incapacitated person.
The
NJSBA has prepared a Summary which highlights key differences between the
existing guardianship law, N.J.S.A. 3B:12-1, et seq., and the
proposed amendments to the law. The
proposed amendments reflect revisions to the bill made by the Elder Law
Section of the NJSBA through August 2004. Summary
N.J. Supreme Court Rules Committee Allows
Psychological Assessments
On
September 1, 2004, the N.J. Supreme Court Rules Committee implemented
changes to Court Rules that allows for the discretionary use of an
assessment prepared by a N.J. licensed psychologist.
The change to Rules 4:86-2 and 4:86-6 re: Affidavits
and Testimony from Psychologists pertains in actions to appoint a
guardian for a mentally incapacitated person with respect to N.J.S.A.
3B.
GANJI and the New Jersey
Psychological Association (NJPA) proposed the amendments to the rule
change to the Administrative Office of the Court on December 15, 2003.
The rule change was endorsed by the Judiciary-Surrogates
Liaison Committee, the Conference of Presiding Judges, and the State
Hispanic Bar Association.
The rule change
allows for the court to substitute the report of one licensed
psychologist for that of one of the two reports of licensed physicians previously
required.
GANJI and NJPA supported the view that the psychologist’s
report would expand upon medical reports by addressing function,
cognition, decision-making, thinking and risk factors relevant to the
person concerned. Information about the individual would be expanded.
The psychologist’s report would assist the Court’s
consideration of least restrictive alternatives.
The Court Rules
change is consistent with national trends in assessment practices
identified by the American Bar Association (ABA) in January 2003.
The ABA survey demonstrated that the majority of states and the
District of Columbia rely on both medical and other professional
assessments. Psychology was the most used of the other professions.
Actions
for the determination of mental incapacity of a person and for the
appointment of a guardian of that person or of that person’s estate,
or both, are brought pursuant to Rule 4:86 with respect to N.J.S.A.
3B: 13-1, et seq.
N.J.S.A. 3B applies to persons who may be elderly, veterans,
substance impaired, mentally ill, physically disabled, developmentally
disabled and/or traumatic brain injured.
The Rule Changes expand the practice of psychologists in
capacity hearings for vulnerable people who did not have access to
this professional resource in the past, except by special direction of
the Court.
For over 10
years, psychologists in state service have prepared the preponderance
of assessments and given testimony regarding capacity and guardianship
under N.J.S.A. 30 and Rule 4:86-10.
The Rule allowed for an assessment by either a licensed
physician or a licensed psychologist (including psychologists in
exempt settings per the New Jersey Board of Psychological Examiners)
for a person over the age of 18 who was receiving services from the
New Jersey Department of Human Services, Division of Developmental
Disabilities. On March
20, 2000, N.J.A.C. 10:43 and DDD Division Circular #6 stated new
regulations for guardianship matters and specified the components of
the guardianship assessment prepared by either the physician or the
psychologist. (See GANJI Monographs on “A Model for Limited
Guardianship” and “Assessing Capacity for People with
Developmental Disabilities.”)
GANJI will
provide one day of Specialty Training on Guardianship at the NJPA Fall
Conference on October 15, 2004 for licensed psychologists.
Dr. Joan Kakascik, President of GANJI, and other members of
GANJI have organized the training.
Dr. Kakascik had written the brief for the court rules change.
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Bill
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Status
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Senate Bill 1336
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On January 19, 1998,
former Governor Whitman signed into law SB 1336.
This law, P.L. 1197, Chapter 379, changes all statutory
designations, excepting the criminal code, of “mental
incompetent” to Incapacitated Person. The law was effective upon signing. This law does not change any of the requirements spelled
out in the Rules of Court for a guardianship action.
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Administration:
COURTS
Attention:
We are publishing these Bar notices for those of our membership
involved in care giving and financial areas of guardianship.
NOTICE
TO THE BAR
RE: Model
Incapacitated Person Guardianship Judgment
Model Judgment
Clarification
This is a clarification of
my August 24, 2000 Notice to the Bar, published on September 25, 2000 in
the New Jersey Law Journal, 161 N.J.L.J. 1401, and on October 2, 2000 in
the New Jersey Lawyer, 9 N.J.L. 1962, announcing the approval of a model
incapacitated person guardianship judgment. Based on comments received
subsequent to that Notice, the Judiciary-Surrogates Liaison Committee
prepared a statement clarifying the intended use of that model judgment,
which clarification has been approved by the Judicial Council.
Pursuant to that
clarification, the provisions of the model judgment are intended to
protect incapacitated persons by ensuring that the court consider specific
relevant issues at the time of making an adjudication of incapacitation.
The model judgment sets out the range of issues that a court should weigh.
Whether to incorporate any particular provision in the final judgment,
however, remains in the sole discretion of the court. In other words, the
model judgment mandates attention by the court, attorneys, and guardians
to relevant guardianship aspects at the time the court enters judgment,
but leaves to the court’s discretion how the incapacitated person’s
person and property will be administered, including whether the
court-appointed attorney should receive and review the guardian’s annual
report and the scope of continuing duties that the court-appointed
attorney will be called upon to fulfill.
Further, it is not intended
that the model judgment supplant the judgment forms used by the Office of
the Public Guardian for Elderly Adults or those used in guardianships
involving the Division of Developmental Disabilities.
Richard J. Williams, J.A.D.
Administrative Director of the Courts
Dated: May 14, 2001
Model
Judgment Approved
At
the March 27, 2000, Administrative Conference, the Supreme Court
approved a model judgment for use in incapacitated person matters.
A copy of the mandatory model judgment is to be used in all
guardianship proceedings under R. 4:86.
The Judiciary Surrogates Liaison Committee prepared this model
form to deal with issues addressed by courts when ruling on whether a
person is incapacitated, the terms and conditions of the guardianship
and the duties of the guardian. The
Committee drafted the model judgment to further the Supreme Court’s
suggestion in The Matter of M.R.,
125 N.J. 155, 171 (1994)
that the use of limited guardianships is to be encouraged. The model judgment conserves the ward’s estate by excluding
the values of the ward’s estate by requiring that the guardian
obtain judicial approval before any sale, encumbrance, transfer or
other disposition of the ward’s real property.
Finally, the judgment contains language requiring the guardian
to file an annual report and for the review of the same by the
attorney appointed to represent the ward prior to the declaration that
he or she is incapacitated.
Copies
of the model judgment are being provided to the State and county bar
associations and will be available at the Surrogate’s office in each
county courthouse.
Richard
J. Williams
Acting
Administrative Director of the Courts
Dated
August 24, 2000
(Reprinted
from “The Guardian”, Vol VI, No 1, Winter 2000)
NOTICE
TO THE BAR
RE: Guardian’s
Annual Report Form
At
the March 27, 2000, Administrative Conference, the Supreme Court
approved an annual guardian’s report form for use in incapacitated
person matters. The
Judiciary Surrogates Liaison Committee created this form to facilitate
the annual reporting of incapacitated persons’ personal and
financial condition. The
first part of the form allows the guardian of the person to report on
the incapacitated person’s physical and emotional health, medical
treatment and living arrangements.
The second part allows the guardian of the property to provide
financial information without employing a formal accounting format.
Copies
of the report form are being provided to the State and county
Surrogate’s Office.
Richard
J. Williams
Acting
Administrative Director of the Courts
Dated
August 24, 2000
(Reprinted
from “The Guardian”, Vol VI, No 1, Winter 2000)
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