Bill Text: NJ S2876 | 2020-2021 | Regular Session | Introduced
Bill Title: Revises and updates law pertaining to guardianship to encourage ethical conduct by guardians and to provide stronger protections for wards and proposed wards.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-09-14 - Introduced in the Senate, Referred to Senate Health, Human Services and Senior Citizens Committee [S2876 Detail]
Download: New_Jersey-2020-S2876-Introduced.html
Sponsored by:
Senator JAMES BEACH
District 6 (Burlington and Camden)
SYNOPSIS
Revises and updates law pertaining to guardianship to encourage ethical conduct by guardians and to provide stronger protections for wards and proposed wards.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning guardianship arrangements, supplementing chapter 12 of Title 3B of the New Jersey Statutes, and amending various sections of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. A ward or proposed ward shall be represented by counsel throughout the course of guardianship proceedings and, if a guardianship arrangement is established, until such time as the arrangement is terminated.
b. Counsel shall personally interview the ward or proposed ward, as the case may be, not more than 72 hours before each scheduled hearing related to guardianship, and shall certify to the court that the interview has been performed.
c. If the ward or proposed ward is, at any time, not represented by counsel and is unable to afford counsel, the court shall appoint counsel therefor.
2. N.J.S.3B:12-37 is amended to read as follows:
3B:12-37. Letters of guardianship to state any limitations at the time of appointment or later.
a. A court establishing a guardianship arrangement shall authorize the level of intervention that the court finds to be least restrictive of the proposed ward's rights while being consistent with the protection of the ward's welfare and safety. The basis for this finding shall be included in the record of the court.
b. A court may:
(1) either at the time a guardian is appointed or at any time thereafter while the guardianship arrangement is ongoing, expand or limit the powers of the guardian that have been conferred by this chapter or by a previous order of the court. If the court limits any power conferred on the guardian, the limitation shall be [so] expressly stated in [certificates of] the applicable letters of guardianship [thereafter issued]; and
(2) revoke or revise, at any time, the expansion or limitation of powers that has been ordered by the court pursuant to paragraph (1) of this subsection.
(cf: P.L.2005, c.304, s.25)
3. N.J.S.3B:12-38 is amended to read as follows:
3B:12-38. Title to ward's property vested in guardian as trustee.
a. The appointment of a guardian of the estate of a minor or [an] incapacitated person vests in [him] the guardian title as trustee to all property of [his] the ward, presently held or thereafter acquired, including title to any property theretofore held for the ward by [attorneys in fact] attorneys-in-fact. The appointment of a guardian is not a transfer or alienation within the meaning of general provisions of any [Federal] federal or State statute or regulation, insurance policy, pension plan, contract, will, or trust instrument[, imposing] that imposes restrictions upon, or penalties for, the transfer or alienation by the ward of [his] the ward's rights or interest, but this section does not restrict the ability of [persons] any person to make specific provision by contract or dispositive instrument relating to a guardian.
b. If a court finds that a guardian of the estate of a minor or incapacitated person has breached the guardian's fiduciary duties to the ward by taking action that is outside the scope of the guardianship arrangement or that violates the rights of the ward, contradicts or violates the ward's best interests, or is otherwise deemed by the court to be improper for a fiduciary, the guardian of the estate shall be liable to the ward or other interested persons for damage or loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust.
(cf: P.L.2005, c.304, s.26)
4. N.J.S.3B:12-42 is amended to read as follows:
3B:12-42. Reporting condition of ward's person and property to court.
[A guardian shall report at] At time intervals [as] ordered by the court, [unless otherwise waived by the court,] but not less often than every six months during the course of a guardianship arrangement, the guardian shall report to the court, under oath, the condition of the ward and the condition of the ward's estate which has been subject to the guardian's possession or control as ordered by the court.
a. A report submitted by [the] a guardian of the person, pursuant to this section, shall state or contain:
(1) the current mental, physical, and social condition of the ward;
(2) the living arrangements for all addresses of the ward during the reporting period;
(3) the medical, educational, vocational, and other services provided to the ward, and the guardian's opinions as to the adequacy of the ward's care;
(4) a summary of the guardian's visits with the ward and activities undertaken by the guardian on the ward's behalf, and an indication as to the extent to which the ward has participated in decision-making;
(5) if the ward is institutionalized, an indication as to whether or not the guardian considers the current plan for care, treatment, or habilitation to be in the ward's best interest;
(6) plans for future care; and
(7) a recommendation as to the need for continued guardianship and any recommended changes in the scope of the guardianship.
b. [The court may appoint an individual to review a report, interview the ward or guardian and make any other investigation the court directs] A report submitted by a guardian of the estate, pursuant to this section, shall state or contain:
(1) an itemized inventory identifying and appraising all of the real and personal property that has come into the guardian's hands or control or has come into the hands of any other person, on the guardian's behalf, during the reporting period, under the auspices of the established guardianship arrangement; and
(2) a formal accounting showing each expenditure and disbursement that has been made by the guardian from the ward's estate during the reporting period.
c. Agencies authorized to act pursuant to P.L.1985, c. 298 (C.52:27G-20 et seq.), P.L.1985, c. 145 (C.30:6D-23 et seq.), P.L.1965, c. 59 (C.30:4-165.1 et seq.), and P.L.1970, c. 289 (C.30:4-165.7 et seq.), and public officials appointed as limited guardians of the person for medical purposes for individuals in psychiatric facilities listed in R.S.30:1-7, shall be exempt from the provisions of this section.
d. The court shall review the reports received pursuant to this section, on at least an annual basis, to ensure that the guardian is properly fulfilling the guardian's duties with respect to the ward or the ward's estate, or both, as the case may be, and is operating in a manner that is consistent with the ward's best interests. The court may, at any time, and shall, whenever a report submitted pursuant to this section indicates that a guardian may not be properly fulfilling the guardian's duties or acting in the ward's best interests, appoint a third-party to interview the ward and guardian and undertake any other investigation the court may direct.
(cf: P.L.2005, c.304, s.29)
5. N.J.S.3B:12-43 is amended to read as follows:
3B:12-43. Expenditures to be made by guardian out of ward's estate.
a. A guardian of the estate of a minor or incapacitated person may expend or distribute so much or all of the income or principal of [his] the ward for the support, maintenance, education, care, general use, and benefit of the ward and [his] the ward's dependents and other household members, in the manner, at the time or times, and to the extent, that the guardian, in an exercise of a reasonable discretion, deems suitable and proper, taking into account the requirements of the "Prudent Investor Act," P.L.1997, c.36 (C.3B:20-11.1 et seq.)[,] and the considerations specified in N.J.S.3B:12-44 and N.J.S.3B:12-45.
b. The expenditure or distribution of funds pursuant to this section may occur either with or without court order [, with].
c. A guardian expending or distributing funds pursuant to this section:
(1) shall give due regard to the duty and ability of [any person] other persons to support or provide for the ward if the ward is a minor, [and without due regard to] but shall not consider the duty and ability of any person to support or provide for the ward if the ward is an incapacitated person[, and with or without regard to]; and
(2) shall be authorized, but not required, to consider whether any other sources of funds, income, or property [which may be] are available for [that purpose] the purposes specified in this section.
d. All decisions made by a guardian of the estate with respect to the expenditure or distribution of funds pursuant to this section shall be consistent with the ward's best interests and the specified wishes and preferences of the ward, to the extent that the ward retains the capacity to express such wishes and preferences.
(cf: P.L.2005, c.304, s.30)
6. N.J.S.3B:12-44 is amended to read as follows:
3B:12-44. Recommendations to be considered by guardian of ward's estate in making expenditures.
a. In making expenditures [under] and distributions pursuant to N.J.S.3B:12-43, the guardian of the estate of a minor or incapacitated person shall consider any recommendations relating to the [appropriate standard of] expenditure and distribution of estate funds for the support, education, care, general use, and benefit [for] of the ward, the ward's dependents, and other members of the ward's household, which are made by [a parent or] the following persons:
(1) the ward, to the extent that the ward is capable of making such recommendations;
(2) if the ward is a minor, the parents of the ward, if any;
(3) if the ward is an incapacitated person, the spouse of the ward and any adult children of the ward or, if the incapacitated ward has no adult children, the person or persons who are closest in degree of kinship to the ward;
(4) the guardian of the ward's person, if any; and
(5) the person or persons with whom the ward resides or, if the ward resides in an institution, the chief administrator of that institution.
b. The guardian of the estate [may not be surcharged] shall be subject to pay a penalty surcharge for any sums that are paid or distributed thereby, pursuant to the recommendation of a person listed in subsection a. of this section, to persons or organizations actually furnishing support, education, or care to the ward [pursuant to the recommendations of a parent or guardian of the person unless] if the recommendation resulting in the payment or distribution is clearly not in the ward's best interests or the guardian knows that the [parent or the guardian] person making the recommendation is deriving personal financial benefit therefrom[, or unless the recommendations are clearly not in the best interests of the ward].
(cf: P.L.2005, c.304, s.31)
7. N.J.S.3B:12-45 is amended to read as follows:
3B:12-45. Other factors to be considered by guardian of ward's estate in making expenditures.
In [making expenditures] addition to considering the recommendations of the persons listed in N.J.S.3B:12-44, whenever a guardian of the estate makes an expenditure or distribution of funds from a ward's estate under N.J.S.3B:12-43, the guardian of the estate [of a minor or incapacitated person shall expend or distribute sums reasonably necessary for the support, education, care or benefit of the ward with] shall give due regard to:
a. [The] the size of the ward's estate;
b. [The] the probable duration of the guardianship arrangement and the likelihood that the ward, at some future time, may be fully able to manage [his] the ward's own affairs and the estate [which] that has been conserved for [him] the ward; [and]
c. [The] the accustomed standard of living of the ward, the ward's dependents, and other members of the ward's household;
d. the best interests of the ward; and
e. the wishes and preferences of the ward, to the extent that the ward is capable of expressing those wishes and preferences.
(cf: P.L.2005, c.304, s.32)
8. N.J.S.3B:12-57 is amended to read as follows:
3B:12-57. Powers and duties of a guardian of the person of a ward.
a. (Deleted by amendment, P.L.2005, c.304.)
b. (Deleted by amendment, P.L.2005, c.304.)
c. (Deleted by amendment, P.L.2005, c.304.)
d. (Deleted by amendment, P.L.2005, c.304.)
e. (Deleted by amendment, P.L.2005, c.304.)
f. In accordance with Section 12 of P.L.2005, c.304 (C.3B:12-24.1), a guardian of the person of a ward shall exercise authority over matters relating to the rights and best interest of the ward's personal needs, only to the extent adjudicated by a court of competent jurisdiction. In taking or forbearing from any action affecting the personal needs of a ward, a guardian shall give due regard to the preferences of the ward, if known to the guardian or otherwise ascertainable upon reasonable inquiry. To the extent that it is consistent with the terms of any order by a court of competent jurisdiction, the guardian shall:
(1) take custody of the ward and establish the ward's place of abode in or outside of this State;
(2) personally visit the ward or if a public agency which is authorized to act pursuant to P.L.1965, c.59 (C.30:4-165.1 et seq.) and P.L.1970, c.289 (C.30:4-165.7 et seq.) or the Office of the Public Guardian pursuant to P.L.1985, c.298 (C.52:27G-20 et seq.) or their representatives which may include a private or public agency, visits the ward not less than once every three months, or as deemed appropriate by the court, and otherwise maintain sufficient contact with the ward to know [his] the ward's capacities, limitations, needs, opportunities, and physical and mental health;
(3) provide for the care, comfort and maintenance, and, whenever appropriate, the education and training of the ward;
(4) subject to the provisions of subsection c. of N.J.S.3B:12-56, give or withhold any consents or approvals that may be necessary to enable the ward to receive medical or other professional care, counsel, treatment, or service;
(5) take reasonable care of the ward's clothing, furniture, vehicles and other personal effects, and, where appropriate, sell or dispose of such effects to meet the current needs of the ward;
(6) institute an action for the appointment of a guardian of the property of the ward, if necessary for the protection of the property;
(7) develop a plan of supportive services for the needs of the ward and a plan to obtain the supportive services;
(8) if necessary, institute an action against a person having a duty to support the ward or to pay any sum for the ward's welfare in order to compel the performance of the duties;
(9) receive money, payable from any source for the current support of the ward, and tangible personal property deliverable to the ward. Any sums so received shall be applied to the ward's current needs for support, health care, education, and training in the exercise of the guardian's reasonable discretion, with or without court order, with or without regard to the duty or ability of any person to support or provide for the ward and with or without regard to any other funds, income, or property that may be available for that purpose, unless an application is made to the court to establish a supplemental needs trust or other trust arrangement. However, the guardian may not use funds from the ward's estate for room and board, which the guardian, the guardian's spouse or domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3), or the ward's parent or child have furnished the ward, unless agreed to by a guardian of the ward's estate pursuant to N.J.S.3B:12-41, or unless a charge for the service is approved by order of the court made upon notice to at least one of the heirs of the ward, if possible. The guardian shall exercise care to conserve any excess funds for the ward's needs; and
(10) If necessary, institute an action that could be maintained by the ward including but not limited to, actions alleging fraud, abuse, undue influence, and exploitation.
g. In the exercise of the foregoing powers, the guardian shall:
(1) act, at all times, in the ward's best interests;
(2) consider the expressed wishes and preferences of the ward, to the extent that the ward is capable of expressing those wishes and preferences, and encourage the ward to participate with the guardian in the decision-making process, to the maximum extent of the ward's ability [in order to]; and
(3) encourage the ward to act on [his] the ward's own behalf, whenever [he] the ward is able to do so, and to develop or regain higher decision-making capacity [to make decisions], to the maximum extent practicable, in those areas in which [he] the ward is in need of guardianship services[, to the maximum extent possible].
(cf: P.L.2005, c.304, s.39)
9. This act shall take effect immediately.
STATEMENT
This bill revises the law pertaining to guardianship in order to provide stronger protections for wards and proposed wards, encourage ethical conduct by guardians, with a particular focus on guardians of the estate, and ensure that the laws pertaining to guardianship of the estate are consistent with the laws pertaining to conservatorships.
Specifically, the bill makes the following substantive changes to strengthen the existing guardianship law:
The bill requires a ward or proposed ward to be represented by counsel throughout the course of guardianship proceedings and, if a guardianship arrangement is established, until such time as the arrangement is terminated. The bill further requires counsel to personally interview the ward or proposed ward not more than 72 hours before each scheduled hearing related to guardianship and certify to the court that the interview has been performed. If the ward or proposed ward is, at any time, not represented by counsel and is unable to afford counsel, the bill would require the court to appoint counsel for the person.
The bill further requires a court, in establishing a guardianship arrangement, to authorize only that level of intervention that the court finds to be least restrictive of the proposed ward's rights while being consistent with the protection of the ward's welfare and safety. The bill clarifies that the court may, at any time, expand or limit the powers of the guardian or revoke or revise any previously ordered expansion or limitation of powers.
The bill also specifies that all actions undertaken by a guardian, whether by a guardian of the person or by a guardian of the estate, are to be undertaken with due regard to, and are to be consistent with, the ward's best interests and the ward's expressed wishes and preferences, to the extent that the ward is capable of expressing those wishes and preferences.
Current law recognizes that a guardian of the estate holds title as trustee to the property of the ward. The bill would clarify that, whenever a court finds that a guardian has breached the guardian's fiduciary duties to the ward by taking an action that is outside the scope of the guardianship arrangement or that violates the rights of the ward, contradicts or violates the ward's best interests, or is otherwise deemed by the court to be improper for a fiduciary, the guardian of the estate will be liable to the ward or other interested parties for damage or loss resulting from breach of fiduciary duty to the same extent as a trustee of an express trust.
Current law also requires a "guardian" to submit reports to the court, at time intervals ordered by the court, but it only imposes specific content requirements in association with reports that are submitted by guardians of the person; not guardians of the estate. The existing law also authorizes the court to waive the reporting requirement entirely, and it does not require the court to actually review any of the submitted reports. The bill would amend the law to: 1) require a report to be submitted by both the guardian of the person and the guardian of the estate at time intervals ordered by the court, but not less often than every six months during the course of the guardianship arrangement; 2) specify the content that must be included in reports submitted by guardians of the estate; 3) eliminate the court's discretion to waive the reporting requirement; and 4) require the court to review the reports submitted pursuant to the bill, on at least an annual basis, in order to ensure that each guardian is properly fulfilling the guardian's duties with respect to the ward or the ward's estate, or both, as the case may be, and is operating in a manner consistent with the ward's best interests. The bill would also authorize the court, at any time, and require the court, whenever its annual review of the submitted reports reveals that the guardian may not be properly fulfilling the guardian's duties or acting in the ward's best interests, to appoint a third-party to interview the ward and the guardian and undertake any other investigation the court may direct.
The existing law requires a guardian of the estate to consider the recommendations of the ward's parent or the guardian of the ward's person when expending and distributing funds from the ward's estate; however, an incapacitated person often does not have a living parent, and the guardian of the person may be the same as the guardian of the estate, meaning that, under existing law, there will often be no available third-party to provide recommendations to the guardian of the estate. The bill would, therefore, amend the law to require the guardian of the estate to consider the recommendations of all of the following individuals: 1) the ward, to the extent that the ward is capable of making the recommendations; 2) if the ward is a minor, the ward's parent; 3) if the ward is an incapacitated person, the spouse and any adult children of the ward or, if there are no adult children, the person or persons who are closest in degree of kinship to the ward; 4) the guardian of the ward's person; and 5) the person or persons with whom the ward resides or, if the ward resides in an institution, the chief administrator of that institution. This change will make the law consistent with the law pertaining to conservatorship, which requires a conservator to consider the recommendations of all these persons.
The bill also amends the existing guardianship law to modernize and clarify the existing language and paragraph and sentence structure and ensure that language is used consistently and in an active and direct voice throughout the law.
