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CHAPTER 45
GUARDIANSHIP SERVICES
CHAPTER TABLE OF CONTENTS
SUBCHAPTER 1. GENERAL PROVISIONS
10:45-1.1 Authority
10:45-1.2 Definitions
SUBCHAPTER 2. ELIGIBILITY REQUIREMENTS FOR GUARDIANSHIP
SERVICES
10:45-2.1 Eligibility requirements for adult,
10:45-2.2 Eligibility requirements for children
SUBCHAPTER 3. CONTINUATION OF ELIGIBILITY FOR
GUARDIANSHIP SERVICES
10:45-3.1 Continuation of eligibility for adults
10:45-3.2 Continuation of eligibility for children
SUBCHAPTER 4. ROLE AND RESPONSIBILITIES OF BUREAU OF
GUARDIANSHIP SERVICES
10:45-4.1 Distinct role of BOS staff
10:454.2 Functions and duties of BGS staff
10:45-4.3 Duty to inform
SUBCHAPTER 5. LIMITATIONS OF AUTHORITY BUREAU OF
GUARDIANSHIP SERVICES
10:45-5.1 Guardianship of person
10:45-5.2 Procedures requiring court approval
10:45-5.3 Guardianship services for a child whose
parent or guardian is deemed unavailable
SUBCHAPTER 1. GENERAL PROVISIONS
10:45-1.1 Authority
(a) The Department of Human Services is directed to
provide comprehensive services, specifically including guardianship
services, to eligible developmentally disabled persons, in order that they
may be provided with adequate training, care and protection (see N.J.S.A.
30:4-165.1).
(b) The Division of Developmental Disabilities is
directed to perform such services for adults who are mentally incompetent,
for whom no guardian has been appointed, as would otherwise be rendered by
a guardian of the person (see N.J.S.A. 30:4-165.5).
(c) The Commissioner of the Department of Human
Services is mandated to make all reasonable and necessary provisions to
insure the health, safety, welfare and earliest appropriate release of
persons admitted to residential services for the developmentally disabled
(see N.J.S.A. 30:4-25.7).
(d) The Bureau of Guardianship Services within the
Division of Developmental Disabilities has been assigned the
responsibility of providing guardianship services by the Division
Director. Guardianship services are limited to the guardian of the person
only and not property.
10:45-1.2 Definitions
The following words and terms, as used in this
chapter, shall have the following meanings, unless the context clearly
indicates otherwise.
"Bureau of Guardianship Services (BGS)" means the
unit within the Division of Developmental Disabilities which has the
responsibility and authority to provide guardianship of the person services
to individuals in need of such services.
"Commissioner" means the Commissioner of the
Department of Human Services.
"Developmental disability" means a severe, chronic
disability of a person which: (1) is attributable to a mental or physical
impairment or combination of mental or physical impairments; (2) is
manifest before age 22; (3) is likely to continue indefinitely; (4)
results in substantial functional limitations in three or more of the
following areas of major life activity, that is, self-care, receptive and
expressive language, learning, mobility, self-direction and capacity for
independent living or economic self-sufficiency; and (5) reflects the need
for a combination and sequence of special interdisciplinary or generic care,
treatment or other services which are of life-long or extended duration and
are individually planned and coordinated. Developmental disability includes,
but is not limited to, severe disabilities attributable to mental
retardation, autism, cerebral palsy, epilepsy, spina bifida, and other
neurological impairments where the above criteria are met. (see P.L. 1985,
c.145).
"Director" means the Director of the Division of
Developmental Disabilities.
"Division" means the Division of Developmental
Disabilities.
"Functional or other services" means those
services and programs in the Division which are available to provide the
persons with developmental disabilities with education, training,
rehabilitation, adjustment, treatment, care and protection. Functional or
other services shall include residential care, case management, social
supervision, and day programming.
"Functional service unit" means any of the
following components of the Division: a Developmental Center, a Regional
Office of Community Services, or the Bureau of Special Residential Services.
"Guardian" means a person or agency appointed by a
court of competent jurisdiction or otherwise legally authorized and
responsible to act on behalf of a minor or incapacitated adult to assure
provision for the health, safety, and welfare of the individual and to
protect his or her rights.
"Guardian ad litem" means a person appointed by a
court to perform an extremely limited type of guardianship, namely to
protect a child's or incapacitated adult's interest during a single instance
of some form of court proceedings or litigation.
"Guardianship services" means those services and
programs provided by the Division for the purpose of implementing its
responsibility toward the individual with developmental disabilities, for
whom it is performing the services of guardian of the person.
"Individual Habilitation Plan (IHP)" means a
document that provides an evaluation of the capabilities and needs of an
individual with developmental disabilities and sets forth clearly defined
and measurable goals and behaviorally stated objectives describing an
individualized program of care, training, treatment, and therapies designed
to attain and/or maintain the physical, social, emotional, educational and
vocational functioning of which the individual is presently or potentially
capable. Specific contents of an IHP are elaborated in N.J.S.A. 30:6D-11.
"Limited guardian" means a person or agency
appointed by a court of competent jurisdiction to make only those decisions
for which an incapacitated person has been adjudicated to lack capacity.
"Mental retardation" means a state of
significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested during the
developmental period. The following words and terms as used in this chapter
shall have the following meanings, unless the context clearly indicates
otherwise.
SUBCHAPTER 2. ELIGIBILITY REQUIREMENTS FOR GUARDIANSHIP
SERVICES
10:45-2.1 Eligibility requirements for adults
(a) An individual 18 years or older is eligible for
guardianship services if he or she is receiving or has been formally
determined by the Division to be eligible for functional or other services
from the Division and has been:
1. Administratively determined mentally deficient,
and consequently in need of guardianship, by the administrative head of
the functional service unit, based upon an assessment and recommendation
of a team of professional to staff, and referred to BGS before April 12,
1985;
2. Adjudicated mentally incompetent by a court of
competent jurisdiction and have has BGS appointed by the court as
guardian of the person; or
3. Adjudicated mentally incompetent by a court of
competent jurisdiction and has had BGS granted power of attorney by the
appointed guardian of the person.
(b) Notwithstanding the provisions of (a) above, every
person receiving guardianship services from BGS without prior judicial
review will be reevaluated pursuant to N.J.S.A. 30:4-165.13 to determine
whether the need for such services continues and, if so, application shall
be made to a court of competent jurisdiction for appointment of a guardian
of the person for that person.
10:45-2.2 Eligibility requirements for children
(a) An individual under the age of 18 years is eligible
for guardianship services if he or she is receiving functional or other
services from the Division, and:
- Is without parent or guardian after the requirements of (b)2 below
have been satisfied; or
- Has a legal guardian of the person, who has granted a power of
attorney to BGS to make personal decisions on behalf of the child.
(b) In the instance of a child determined eligible for guardianship
services where no parent or guardian is deemed available, staff of the
functional service unit shall verify such status by:
1. Documentation that the child's legal guardian(s)
is(are) deceased and that there are no other relations or close family
friends available to serve as guardian; or
2. Documentation that the following efforts to locate
the child's guardian(s) have been unsuccessful:
i. Notice in the primary language of the guardian, if
known, by regular mail and follow-up by certified mail, return receipt
requested, to the guardian's last known address, with no response
received within 45 days of forwarding the certified letter;
ii. Documented inquiry, among any known relatives,
friends and current or former employers of the guardian(s); and
iii. Documented inquiries, unless restricted by law,
using the guardian's last known or suspected address to the local post
office, the Division of Motor Vehicles, and any social service and law
enforcement agencies known to have had contact with the guardian(s) both
in New Jersey and in other states. Failure to receive response to the
inquiries within 45 days shall constitute a negative response.
3. The New Jersey Protection and Advocacy, Inc. shall
be notified in writing by the BGS within 10 days of initiation,
termination or change of guardianship services for a child whose parents
are deemed unavailable.
SUBCHAPTER 3. CONTINUATION OF ELIGIBILITY FOR
GUARDIANSHIP SERVICES
10:45-3.1 Continuation of eligibility for adults
(a) Eligibility for guardianship services continues
for an adult individual as long as:
- He or she remains a recipient of functional or other services from
the Division; and
- None of the following has occurred:
i. A court order reversing a previous adjudication of
mental incompetency and appointment of BGS as guardian;
ii. In the instance of an individual receiving
guardianship services on the basis of determination of mental deficiency
prior to April 12, 1985, a change of this status resulting from a review
and re-evaluation of the IHP pursuant to N.J.A.C. 10:43; or
iii. A revocation of a power of attorney by the
guardian, or a lapse of the time specified therein.
10:45-3.2 Continuation of eligibility for children
(a) Eligibility for guardianship services continues for
a child as long as he or she:
1. Remains a recipient of functional or other
services from the Division;
2. Remains under the age: of 18 years. Prior to
reaching the age of majority, an assessment shall be made as to the
continuing need for a guardian as an adult, in accordance with the
provisions of N.J.S.A. - 30:4-165.4 et seq. and N.J.A.C. 10:43; and
3. Remains without a guardian, or there is power of
attorney still in force designating BGS to act on the child's behalf.
i. In the instance of a child previously without a
parent or guardian available, when a parent or appointed legal
guardian who had been inaccessible again becomes available to exercise
his or her role:
(1) If interim guardianship services ate provided,
guardianship services shall immediately and automatically cease with
written notification to the parent or appointed guardian.
(2) If BGS has been appointed by a court as
guardian, a termination or change of guardianship is required by the
court.
(3) In the instance of the return of a parent or a
guardian who is deemed by BGS to be unsuitable, BGS shall petition the
court of competent jurisdiction for termination of the parent
guardianship rights.
(4) If a power of attorney lapses or is revoked,
BGS shall discontinue services as of the applicable date.
(b) A referral to the courts for appointment of a
Guardian shall be made within one year of the initiation of BGS
guardianship services.
SUBCHAPTER 4. ROLE AND RESPONSIBILITIES OF BUREAU OF
GUARDIANSHIP SERVICES
10:45-4.1 Distinct role of BGS staff
BGS staff shall function distinctly and independently from functional
service units in terms of their interrelation with individuals receiving
services from the Division.
BGS staff shall focus exclusively on the following:
- Protective services;
- Safeguarding individual rights;
- Substitute decision-making;
- Advocacy on behalf of the individual; and
- Maximizing the individual's self-determination,
10:45-4.2 Functions and duties of BGS staff
(a) In order to exercise their role and
responsibilities, for all individuals receiving guardianship services, BGS
staff shall be knowledgeable and informed about individual status, program
and progress by means of the following:
1. Direct contact: Individuals served should be
visited at least annually, more often as necessary.
2. Interviews with staff, service providers,
relatives and other involved parties;
3. Participation at case conferences, individual
habilitation plan sessions and other meetings when feasible;
4. Review of records; or
5. Utilization of any other appropriate source of
information.
(b) BGS staff shall be responsible to advocate for
individuals served in areas including, but not limited to:
1. Placement in the least restrictive
environment;
2. Programs and services appropriate to individual
needs;
3. The exercise of individual rights; and
4. Self advocacy.
(c) BGS staff may give or withhold consent for
proposed medical or dental procedures and behavior modification involving
the use of Level III techniques as defined in "Levels of aversiveness" at
N.J.A.C. 10:41-4.3. Such consent shall be premised upon:
1. Adequate information regarding the procedure,
the risks involved, anticipated benefits, the possible alternatives and any
experimental or irreversible aspects of the proposed procedure. (A second
opinion may be requested.); and
2. Freedom from coercion by other parties.
(d) BGS staff may give or withhold consent for
access to client records, release of confidential information and/or
photographing individuals served consistent with the requirements of N.J.S.A.
30:4-23.4 governing confidentiality of client records.
(e) BGS staff may give or withhold approval for
major changes of program or transfers.
(f) BGS staff may give or withhold approval of the
IHP.
(g) Consent or approval as provided for in (c)
through (f) above may be withheld if there is basis for an informed judgment
by BGS staff that what has been proposed would not be in the individual's
best interest or that the potential risks involved would outweigh any
anticipated benefit.
(h) BGS staff shall make surrogate decisions on
behalf of individuals receiving guardianship services, as delineated above
under (c) through (f), only within the following parameters:
1. If the individual is receiving guardianship
services on the basis of an administrative determination and referral to BGS
prior to April 12, 1985, and no court review has yet transpired, the
Individual Habilitation Plan developed in accordance with the provisions of
N.J.S.A. 30:6D-10 shall include content addressing the individual's capacity
to make decisions. BGS staff, in the course of providing guardianship
services, shall give due consideration to the conclusions delineated in the
most recent Individual
Habilitation Plan relative to the individual's decision-making abilities.
2. If the individual has been adjudicated as an
incapacitated person by a court of competent jurisdiction, BGS staff shall
make decisions on the person's behalf in accordance with the provisions of
the court order appointing BGS as guardian of the person.
(i) With respect to the decisions described under
(c) through (f) above, BGS staff shall ascertain and consider those
characteristics which define personal uniqueness and individuality,
including, but not limited to, likes, dislikes, hopes, aspirations and
fears. Moreover, BGS shall encourage the individual to express preferences
and to participate in decision-making to the extent of his or her
capability. Special care should be taken to ascertain the feelings of the
individual whenever possible
before making a decision.
10:45-4.3 Duty to inform
Functional service unit staff shall inform BGS staff
promptly and comprehensively regarding any significant life events,
proposed program changes, or incidents involving individuals being served
by BGS.
SUBCHAPTER 5. LIMITATIONS OF AUTHORITY BUREAU
OF GUARDIANSHIP SERVICES
10:45-5.1 Guardianship of person
The responsibility and authority of BGS shall be
restricted to guardianship of the person only, and not of property,
pursuant to N.J.S.A. 30:4-165.12. BGS' role as provider of guardianship of
the person services shall be exercised according to the guidelines and
within the parameters described under N.J.A.C. 10:45-4.2(h) and (i).
10:45-5.2 Procedures requiring court approval
(a) In accord with N.J.S.A. 30:6D-5(a), BGS staff shall
not consent to the following procedures but may, with the approval of the
Chief of the Bureau, refer the matter to a court of competent jurisdiction
for appointment of a guardian ad litem:
1. Shock treatment;
2. Psychosurgery;
3. Sterilization; or
4. Medical, behavioral or pharmacological research as
experimentation.
10:45-5.3 Guardianship services for a child whose parent or guardian is
deemed unavailable
(a) Guardianship services initiated on the basis of the
procedures delineated in N.J.A.C. 10:45-2.2(b) may be provided on an
interim basis for a maximum of one year without judicial appointment.
(b) No later than 10 months after the commencement of
guardianship services, petition shall be made to a court of competent
jurisdiction pursuant to N.J.S.A. 30:4-165.1 et seq. for the appointment
of a guardian, unless the parent(s) or appointed guardian shall have
reassumed their role under the provision of N.J.A.C. 10:45-3.2(a)3i.
(c) During the course of providing interim guardianship
services, BGS shall render consent in certain critical areas of
decision-making only after an administrative review procedure shall have
been conducted.
1. Critical areas of decision-making requiring
administrative review shall include the following:
i. A transfer which involves a change of the
individual's place of residence;
ii. A medical procedure which entails major,
irrevocable consequences including, but not limited to, amputation of
a limb, abortion,, removal or transplant of a vital organ; and
iii. A major change in the individual's IHP,
including but not limited to implementation of a behavior modification
program involving the use of Level III techniques as defined in
"'Levels of aversiveness" at N.J.A.C. 10:41-4.3.
2. When the need for consent in a critical area of
decision-making arises, BGS staff shall renew attempts to locate the
child's parent(s), unless the child is orphaned. The extent and
time-frame for these efforts shall be proportionate to the emergent
nature of the situation, but shall be documented. Within one working
day of reaching conclusion that the parent(s) is/are unavailable, the
matter shall be referred to the Chief of BGS at which time notice
shall be given to the New Jersey Protection and Advocacy, Inc.
3. Within one working day of receipt of the
referral, the Chief, BGS, shall request assignment of an
Administrative Review Officer by the Director. The Administrative
Review Officer shall not have any role of responsibility in a
functional service unit of the Division,
4. The Administrative Review Officer shall arrange
and schedule an administrative review as soon as possible, but no
later than eight working days after his/her designation.
i. Participants shall be a representative of the
New Jersey Protection and Advocacy, Inc., a representative of BGS and,
at their option, witnesses for either party.
ii. The representative of BGS shall present
evidence relating to the unavailability of the parent(s) and the
appropriateness of the proposed decision the best interests of the
child.
iii. The representative of the New Jersey
Protection and Advocacy, Inc. shall define that office's position,
either of concurrence or disagreement with the proposed action of BGS.
In either case, the basis for the New Jersey Protection and Advocacy,
Inc.'s position regarding the issue shall also be defined and
supported by evidence where appropriate,
iv. After hearing the evidence presented by both
parties, the Administrative Review Officer shall render a final
decision either to uphold or to reverse the proposed decision of BGS.
The final decision shall be based upon clear and convincing evidence.
The final decision shall be communicated to the New Jersey Protection
and Advocacy, Inc. and BGS, in writing no later than five working days
after the hearing. The final decision shall clearly articulate the
positions of the parties, what evidence was presented and considered,
and how the determination was reached.
v. A tape recording of the Administrative Review
shall be maintained by the Administrative Review Officer for a minimum
period of one year.
5. In any situation of extreme medical emergency,
where any delay of decision-making on behalf of the child would
pose a serious threat to the child's life or health, BGS shall render
a decision without an administrative review. The existence of an
extreme medical emergency must be certified in writing by a licensed
physician. The physician's certification shall be maintained in the
child's client record.
6. The New Jersey Protection and Advocacy, Inc.
shall be informed of the decision of BGS to (c)5 above as soon as
possible.
