GUARDIANSHIP IN NEW JERSEY

Disclaimer

This general information concerning guardianship laws in the state of New Jersey is not intended to replace the advice and counsel of an attorney who specializes in disability and elder care legal proceedings.  Please consult a disability and elder care attorney if you believe you have a need for guardianship for yourself, family or friend.

I.  Guardianship For A Person Receiving Services From the
    N.J. State Division of Developmental Disabilities (D.D.D.).

II. Guardians for Incompetents Under Uniform Veterans Guardianship Law

III. Guardianship Rules For All Other People

Guardianship Through Division of Developmental Disabilities

Two of the important services provided by the Division of Developmental Disabilities (D.D.D.) for people approved for their services are the; 

1. Guardianship Evaluation Services

2. Legal Services To Institute Guardianship from the New Jersey Bureau of Guardianship Services.

These services are provided free by the Division for families requesting them.  The Legal proceedings only involve Guardianship of the person, not Guardianship of property.  If the disabled person has significant assets in their own name (personal injury settlement, inheritance etc..) you will want to use a private attorney to initiate the Guardianship procedure.

Also, there are waiting lists involved involved in DDD based Guardianship .  For recent families it has been taking approximately 2 years to complete the Guardianship process.  The cost savings are significant because in New Jersey, the Guardianship process using a private attorney will cost anywhere from $2,500 and up.  If a family wants to utilize these services they should contact their D.D.D. Case Manager.  For further information on how these services work click on the links to the D.D.D. Administrative Code within this website highlighted above this paragraph.  If a family does not want to wait for D.D.D. services they can always hire an attorney and follow the procedures indicated below:

New Jersey Rule 4:86. Action For Guardianship Of An Incompetent Or For The Appointment Of A Conservator 

4:86-1. Complaint
4:86-2. Accompanying Affidavits
4:86-3. Disqualification of Physician
4:86-4. Order for Hearing
4:86-5. Proof of Service; Appearance of Incompetent at Hearing; Answer
4:86-6. Hearing; Judgment
4:86-7. Return to Competency
4:86-8. Appointment of Guardian for Nonresident Incompetent
4:86-9. Guardians for Incompetents Under Uniform Veterans Guardianship Law
4:86-10. Appointment of Guardian for Persons Receiving Services From the Division of Developmental Disabilities
4:86-11. Appointment of Conservator
4:86-12. Special Medical Guardian

4:86-1. Complaint

Every action for the determination of mental incompetency of a person and for the appointment of a guardian of that person or of the person's estate or both, other than an action with respect to a veteran under N.J.S.A. 3B:13-1 et seq., shall be brought pursuant to R. 4:86-1 through R. 4:86-8.  The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged incompetent and of the alleged incompetent's spouse, if any; the plaintiff's relationship to the alleged incompetent; the plaintiff's interest in the action; teh names, addresses and ages of the alleged incompetent's children, if any, and the names and addresses of the alleged incompetent's parents and nearest of kin; the name and address of the person or institution having the care and custody of the alleged incompetent; and if the alleged incompetent has lived in an institution, the period or periods of time the alleged incompetent has lived therein, the date of the commitment or confinement, and by what authority committed or confined.

Note: Source-R.R. 4:102-1.  Amended July 22, 1983 to be effective September 12, 1983: former R. 4:83-1 amended and rule redesignated June 29, 1990 to be effective September 4, 1990.

4:86-2. Accompanying Affidavits

The allegations of the complaint shall be verified as prescribed by R. 1:4-7 and shall have annexed thereto:

 (a) An affidavit stating the nature, location and fair market value (1) of all real estate in which the alleged incompetent has or may have a present or future interest, describing the real estate fully or by metes and bounds, and stating the assessed valuation thereof; and (2) of all the personal estate which he or she is, will or may in all probability become entitled to, including the nature an total or annual amount of any compensation, pension, insurance, or income which may be payable to the alleged incompetent.  If the plaintiff cannot secure such information, the complaint shall so state and give the reasons therefore, and the affidavit submitted shall in that case contain as much information as can be secured in the exercise of reasonable diligence;

(b) Affidavits of two reputable physicians, having qualifications set forth in N.J.S.A. 30:4-27.2t.  If an alleged incompetent has been committed to a public institution and is confined therein, one of the affidavits shall be that of the chief executive officer, the medical director, or the chief of service providing that person is also the physician with overall responsibility for the professional program of care and treatment in the administrative unit of the institution.  However, where an alleged incompetent is domiciled within this State but resident elsewhere, the affidavits may be those of physicians who are residents of the state or jurisdiction of the alleged incompetent's residence.  Each affiant shall have made a personal examination of the alleged incompetent not more than 30 days prior to the filing of the complaint, but said time period may be relaxed by the court on an ex parte showing of good cause.  To support the complaint,  each affiant shall state: (1) the date and place of the examination: (2) whether the physician is a treating or examining physician; (3) whether the physician is disqualified under R. 4:86-3: (4) the diagnosis and prognosis and factual basis therefor; (5) for purposes of ensuring that the alleged incompetent is unfit and unable to govern himself or herself and to manage his or her affairs and shall set forth with particularity the circumstances and conduct of the alleged incompetent upon which this opinion is based, including a history of the alleged incompetent's condition.  The affidavit should also include an opinion whether the alleged incompetent is capable of attending the hearing and if not, the reasons for the individual's inability.

(c) In lieu of the affidavits provided for in paragraph (b), an affidavit of one reputable physician having the qualifications as required by paragraph (b), stating that he or she has endeavored to make a personal examination of the alleged incompetent not more than 30 days prior to the filing of the complaint but that the alleged incompetent or those in charge of him or her have refused or are unwilling to have the affiant make such an examination.  The time period herein prescribed bay be relaxed by the court on an ex parte showing of good cause.

Note: Source-R.R. 4:102-2; former R. 4:83-2 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b) amended July 13, 1994 to be effective September 1, 1994.

4:86-3. Disqualification of Physician

No affidavit shall be submitted by a physician who is related, either through blood or marriage, to the alleged incompetent or to a proprietor, director or chief executive officer of any institution (except state, county, or federal institutions) for the care and treatment of the mentally ill in which the alleged incompetent is living, or in which it is proposed to place him or her, or who is professionally employed by the management therof as a resident physician, or who is financially interested therein.

Note: Source-R.R. 4:102-3; former R.4:83-3 amended and  rule redesignated June 29, 1990 to be effective September 4, 1990.

4:86-4. Order for Hearing

(a) Contents of Order.  If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken theron, it shall enter an order fixing a date for hearing and requiring that at least 20 days' notice therof be given to the alleged incompetent, the alleged incompetent's spouse, children 18 years of age or over, parents, the person having custody of the alleged incompetent, the attorney appointed pursuant to $. 4:86-4(b), and such other persons as the court directs.  Notice shall be effected by service of a copy of the order, complaint and supporting affidavits upon the alleged incompetent personally and upon each of the other persons in such manner as the court directs.  The court, in the order, may, for good cause, allow shorter notice or dispense with notice, but in such case the order shall recite the ground therefor, and proof shall be submitted at the hearing that the ground for such dispensation continues to exist.  A separate notice shall, in addition, be personally served on the alleged incompetent stating that if he or she desires to oppose the action he or she may appear either in person or by attorney and may demand a trial by jury.

(b) Appointment and Duties of Counsel.  The order shall include the appointment by the court of counsel for the alleged incompetent.  Counsel shall 1) personally interview the alleged incompetent; 2)make inquiry of persons having knowledge of the alleged incompetent's circumstances, his or her physical and mental state and his or her property; 3) make resonalbe inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged incompetent or to discover any interests the alleged incompetent may have as beneficiary of a will or trust.  At least on plaintiff's attorney and other parties who have formally appeared in the matter.  The report shall contain the information developed by counsel's inquiry; make recommendations concerning the court's determination on the issue of incompetency including the suitability of less restrictive alternatives such as a conservatorship or limited guardianship; and state whether the alleged incompetent has expressed dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court.  If the alleged incompetent obtains other counsel, such counsel shall notify the court and appointed counsel at least five days prior to the hearing date.

(c) Examination.  If the affidavit supporting the complaint is made pursuant to R. 4:86-2(c), the court may, on motion and upon notice to all persons entitled to notice of the hearing under paragraph (a), order the alleged incompetent to submit to an examination.  The motion shall set forth the names and addresses of the physicians who will conduct the examination, and the order shall specify the time, place and conditions of the examination.  Upon request, the report thereof shall be furnished to either the examined party or his or her attorney.

(d) Guardian Ad Litem.  At ay time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged incompetent and to present that evaluation to the court.

(e) Compensation.  The compensation of the appointed counsel and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged incompetent or in such other manner as the court shall direct.

Note: Souce-R.R. 4:102-4(a)(b). Paragraph (b) amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980 to be effective September 8, 1980; paragraph (a) amended July 16, 1981 to be effective September 14, 1981; caption of former R. 4:8304amended, caption and text of paragraph (a) amended and in part redesignated as paragraph (b) and former paragraph (b) redesignated as paragraph (c) and amended, and rule redesgnated June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended and paragraphs (d) and (e) added June 28, 1996 to be effective September 1, 1996.

4:86-5. Proof of Service; Appearance of Incompetent at Hearing; Answer

Prior to the hearing, the plaintiff shall file proof of service of the notice, order for hearing, complaint and affidavits and proof by affidavit that the alleged incompetent has been afforded the opportunity to appear personally or by attorney, and that he or she has been given or offered assistance to communicate with friends, relatives, or attorneys.  The plaintiff or appointed counsel may produce the alleged incompetent at the hearing or the court may direct the plaintiff to do so, unless the court finds that it would be prejudicial to the health of the alleged incompetent or unsafe for the alleged incompetent or others to do so.  If the alleged incompetent or any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than five days before the hearing, serve and file an answer to the complaint. 

Note: Source-R.R. 4:102-5; caption and text of former $. 4:83-5 amended and rule redesignated June 29, 1990 to be effective September 4, 1990.

4:86-6. Hearing; Judgment

(a) Trial.  Unless a trial by jury is demanded by or on behalf of the alleged incompetent, or is ordered by the court, the court without a jury shall, after taking testimony in open court, determine the issue of mental incompetency.  If there is no jury, the court, with the consent of counsel for the alleged incompetent, may take the testimony of a physician by telephone or may dispense with the physician's oral testimony and rely on the affidavits submitted pursuant to R. 4:86-2(b).  Telephone testimony shall be recorded verbatim.

(b) Motion for New Trial.  A motion for a new trial shall be served not late than 30 days after the entry of the judgment.

(c) Appointment of Guardian.  If a guardian is to be appointed, letters shall be granted to the spouse or next of kin, or if none of them will accept the letters or it is proven to the court that no appointment from among them will be in the best interests of the incompetent or his or her estate, then to such other proper person a will accept them  Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1.  The judgment appointing the guardian shall fix the amount of the bond, unless dispensed with by the court.  The order of appointment shall require the guardian to file with the court within 60 days of appointment an inventory specifying all property and income of the incompetent's estate, unless the court dispenses with this requirement.  Within this time period, the guardian shall also serve copies of the inventory on all next of kin and such other interested parties as the court may direct.

Note: Source:R.R. 4:102-6(a)(b)(c), 4:103-3 (second sentence).  Paragraph (a) amended July 26, 1984 to be effective September 10, 1984; paragraphs (a) and (c) of former R. 4:83-6 amended and rule redesignated June 29, 1990 to be effective September 4, 1990; paragraph (c) amended July 13, 1994 to be effective September 1, 1994.

4:86-7. Return to Competency

Upon the commencement of a separate action or upon the filing of a motion in the original cause by the incompetent or an interested person on his or her behalf, supported by affidavit and setting forth facts evidencing return to competency, the court shall set a date for hearing, take oral testimony in open court with or without a jury, and may render judgment that the person has returned to competency and that his or her estate be restored to his or her control.

Note: Source-R.R. 4:102-7; former R. 4:83-7 amended and rule redesignated June 29, 1990 to be effective September 4, 1990.

4:86-8.  Appointment of Guardian for Nonresident Incompetent

An action for the appointment of a guardian for a nonresident who has been or shall be found to be a mental incompetent under the laws of the state or jurisdiction in which the incompetent resides shall be brought in the Superior Court pursuant to R. 4:67.  The plaintiff shall exhibit and file with the court and exemplified copy of the proceedings or other evidence establishing the finding.  If the plaintiff is the duly appointed guardian, trustee or committed of the mental incompetent in the state or jurisdiction in which the finding was, and applies to be appointed guardian in this

Note: Source-R.R. 4:102-8.  Amended July 26, 1984 to be effective September 10, 1984; former R.4:83-8 amended and rule redesignated June 29, 199 to be effective September 4, 1990.

4:86-9.  Guardians for Incompetents Under Uniform Veterans Guardianship Law

(a) Complaint for Appointment.  An action for the appointment of a guardian under N.J.S.A. 3B:13-1 et seq. for a ward alleged to be a mental incompetent shall be brought in the Superior Court by any person entitled to priority of appointment.  If these is no person so entitled or if the person so entitled fails or refuses to commence the action within 30 days after the mailing of notice by a federal agency to the last known address of such person entitled to priority of appointment, indicating the necessity for the appointment, the action may be brought by any person residing in this State, acting on the ward's behalf.

(b) Complaint.  The complaint shall state (1) the name, age and place of residence of the ward; (2) the name and place of residence of the nearest relative, if known; (3) the name and address of the person or institution, if any, having custody of the ward; (4) that such ward is entitled to receive money payable by or through a federal agency; (5) the amount o money due and the amount of probable future payments; and (6) that the ward has been rated incompetent on examination by a federal agency in accordance with the laws regulating the same.

(c) Proof of Necessity for Guardian of Mental Incompetent.  A certificate by the chief officer, or his or her representative, stating the fact that the ward has been rated incompetent by a federal agency on examination in accordance with the laws and regulations governing such agency and that appointment is a condition precedent to the payment of money due the ward by such agency shall be prima facie evidence of the necessity for making an appointment under this rule.

(d) Determination of Mental Incompetency.  Mental incompetency may be determined on the certificates, without other evidence, of two medical officers of the military service or of a federal agency, certifying that by reason of mental incompetency the ward is incapable of managing his or her property, or certifying o such other facts as shall satisfy the court as to such incompetency.

(e) Appointment of Guardian; Bond.  Upon proof of notice duly given and a determination of mental incompetency, the court may appoint a proper person to be the guardian and fix the amount of the bond.  The bond shall be in an amount not less than that which will be due or become payable to the ward in the ensuing year.  The court may from time to time require additional security. Before letters of guardianship shall issue, the guardian shall accept the appointment in accordance with R. 4:96-1.

(f) Termination of Guardianship When Ward Becomes Competent.  If the court has appointed a guardian for the estate of a ward, it may subsequently, on due notice, declare the ward to be competent on proof of a finding and determination to that effect by the medical authorities of the military service or federal agency or based on such other facts as shall satisfy the court as to the competency of the ward.  The court may thereupon discharge the guardian without further proceedings subject to the settlement of his or her account.

(g) Complaint in Action to Have Guardian Receive Additional Personalty.  The complaint in an action to authorize the guardian, pursuant to law, to receive personal property from any source other than the United States Government shall set forth the amount of such property and the name and address of the person or institution having actual custody of the ward.

(h) Definitions.  Definitions contained in N.J.S.A. 3B:13-2 shall apply to the terms of this rule.

Note: Source-R.R. 4:102-9(a) (b) (c) (d) (e) (f) (g) (h), 4:103-3 (second sentence).  Paragraph (a) amended July 22, 1983 to be effective September 12, 1983; paragraph (a) amended July 26, 1984 5o be effective September 10, 1984; paragraphs (a) through (f) and (h) of former R. 4:83-9 amended and rule redesignated June 29, 1990 to be effective September 4, 1990.

4:86-10.  Appointment of Guardian for Persons Receiving Services From the Division of Developmental Disabilities

An action pursuant to N.J. S.A. 30:4-165.7 et seq. for the appointment of a guardian for a person over the age of 18 who is receiving services from the Division of Developmental Disabilities shall be brought pursuant to these rules insofar as applicable, except that:

(a) The complaint may be brought by the Commissioner of Human Services or a parent, spouse, relative or other party interested in the welfare of such person.

(b) In lieu of the affidavits prescribed by R. 4:86-2 the verified complaint shall have annexed thereto two affidavits.  One affidavit shall be submitted by the chief executive officer, medical director, or other officer having administrative control over a Division of Developmental Disabilities program servicing the alleged incompetent and the other shall be submitted by a physician licensed to practice in New Jersey or a psychologist licensed pursuant to N.J.S.A. 45:14B01, et seq.  The affidavit shall set forth with particularity the alleged incompetent person's significant chronic functional impairment, as that item is defined in N.J.S.A. 30:4-165.8, and the facts supporting the affiant's belief that as a result therof, the person lacks the cognitive capacity either to make decisions or to communicate decisions to others.

(c) If the petition seeks guardianship of the person only, the Office of the Public Defender, if available, shall be appointed as attorney for the alleged incompetent person, as required by R. 4:86-4.  If the Office of the Public Defender is unavailable or if the petition seeks guardianship to the person and the estate, the court shall appoint an attorney other than the Public Advocate to represent the alleged incompetent person.  The attorney for the alleged incompetent person may where appropriate retain an independent expert to render an opinion respecting the incompetency of the alleged incompetent person. 

(d) The hearing shall be held pursuant to R. 4:86-6 except the a guardian may be summarily appointed if the attorney for the alleged incompetent, by affidavit, does not dispute either the named for the guardianship or the fitness of the proposed guardian and if a plenary hearing is not requested either by the alleged incompetent or on his or her behalf.

Note:  Adopted July 7, 1971 to be effective September 13, 1971; amended July 24, 1978 to be effective September 11, 1978.  Former rule deleted and new rule adopted November 5, 1986 to be effective January 1, 1987; caption amended and paragraphs (b), (c) and (d) of former R. 4:83-10 amended and rule redesignated June 29, 1990 to be effective September 4, 19990; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (c) amended June 28, 1996 to be effective September 1, 1996.

4:86-11. Appointment of Conservator

(a) Commencement of Action; Complaint.  An action pursuant to N.J.S.A. 3B:13A-1 et seq. for the appointment of a conservator shall be brought by a conservatee or other person on his or her behalf on notice, as provided by N.J. S.A. 3B:13A05 and 6.  The complaint shall be filed in the Superior Court and shall state (1) the conservatee's age and residence, (2) the names and addresses of the conservatee's heirs and ll other persons entitled to notice pursuant to N.J.S.A. 3B:13A06, and (3) the nature, lacation and fair market value of all property, real and personal, in accordance with R. 4:86-2 (a).

(b) Hearing.  The court, without a jury, shall take testimony in open court to determine whether the conservatee, by reason of advanced age, illness or physical infirmity, is unable to care for or manage his or her property or has become unable to provide for himself or herself or others dependent upon him or her for support.  The court may appoint counsel for the conservatee if it concludes that counsel is necessary to protect his or her interests.  If the conservatee is unable to attend the hearing by reason of physical or other disability, the court shall appoint a guardian ad litem to conduct an investigation to determine whether the conservatee objects to the conseratorship.  If counsel for the conservatee has, however, been appointed, such counsel shall conduct the investigation and no separate guardian ad litem shall be appointed.  In no case shall a conservator be appointed if the court finds that the conservatee objects thereto.

(c) Acceptance of Appointment.  Where the court, for good cause show, orders a full accounting bye the conservator, the account shall be settled in the Superior Court in accordance with R. 4:87, insofar as applicable.

Note: Adopted July 26, 1984 to be effective September 10, 1984; paragraphs (a), (b) and (c) of former R. 4:83-11 amended and rule redesignated June 29, 1990 to be effective September 4, 1990.

4:86-12. Special Medical Guardian

(a) Standards.  On the application of a hospital, nursing home, treating physician, relative or other appropriate person under the circumstances, the court may appoint a special guardian of the person of a patient to act for the patient respecting medical treatment consistent with the court's order, if it finds that:

(1) the patient is incompetent, unconscious, underage or otherwise unable to consent to medical treatment;

(2) no general or natural guardian is immediately available who will consent to the rendering of medical treatment;

(3) the prompt rendering of medical treatment is necessary in order to deal with a substantial threat to the patient's life or health; and

(4) the patient has not designated a health care representative or executed a health care instruction directive pursuant to the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 to - 78, determining the treatment question in issue.

(b) Venue.  The application shall be made to the Superior Court judge assigned to general equity in the vicinage in which the patient is physically located when the application is made and, in the event of that judge's unavailablility, to the Assignment Judge of the vicinage or the judge designated as the emergent judge, or if neither is available, any judge in the vicinage.

(c) Procedure.  The procedure on the application shall conform as nearly as practicable to the requirements of R.4:86-1 to R.4:86-6, but the judge may, if the circumstances require, accept an oral complaint an oral testimony either by telephone, in court, or at any other suitable location.  If the circumstances do not permit the making of a verbatim record, the judge shall make detailed notes of the allegations of the complaint and the supporting testimony.  Whenever possible an attorney shall be appointed to represent the patient.

(d) Order.  The order granting the application, if orally rendered, shall be reduced to writing as promptly as possible and shall recite the findings on which it is based.