The New Jersey Supreme Court has amended the Court Rules governing guardianships to establish a new state-wide policy for background screenings of proposed guardians of incapacitated persons. The amendments are effective as of May 15, 2021.
The new policy is intended to safeguard the vulnerable population of incapacitated adults against risks of potential abuse, neglect, and financial exploitation by guardians appointed by the court to make decisions related to their care and financial affairs. The new background screening policy will provide a method for the court to consider a proposed guardian’s civil and criminal judgment history in order to make a fully informed decision as to whether the individual is suitable for appointment.
Proposed guardians will be subject to a fingerprint or computerized criminal history check, and, in some cases, a certified judgment search. Proposed guardians also will be required to self-disclose and certify to any criminal and civil judgment history, acknowledge receipt of and compliance with the policy, and provide periodic reports to the court of any changes to their criminal and civil judgment history. Individuals with any relevant negative history will be provided with notice and an opportunity to be heard by the court as to whether the information discovered would affect the individual’s ability to perform the duties of a guardian.
Certain court rules have been revised. In that regard, R. 4:86-2(b) has been amended to require a petitioner for guardianship to annex to the complaint an affidavit or certification setting forth the criminal and civil judgment history of the proposed guardian. If the complaint does not identify a proposed guardian, the certification shall be filed prior to the entry of the judgment of legal incapacity and the appointment of the guardian. The Administrative Director of the Courts will establish a background screening policy for proposed guardians of incapacitated adults, which may include fingerprinting.
Certain individuals and entities are exempt from the new requirement. These include: parents of allegedly incapacitated children; spouses of allegedly incapacitated persons; those in a civil unions or domestic partnerships with allegedly incapacitated persons; certain temporary guardians; certain agencies; public officials appointed as limited guardians for medical purposes; financial institutions; and attorneys licensed and in good standing in the State of New Jersey. The court, however, may require any of the above individuals and entities to undergo background screening as a prerequisite to appointment based on the facts of the case.
R. 4:86-4 was amended to require the order to show cause to include provisions requiring any proposed guardian to comply with any applicable background screening policy, and to provide that a copy of the policy shall be provided with the order.
R. 4:86-6 requires the guardian’s acceptance of appointment to include an acknowledgment of compliance with any background screening policy for proposed guardians of incapacitated adults promulgated by the Administrative Director of the Courts.
The Notice to the Bar and amended Rules can be found here:
The new court directive, entitled “Directive #11-21 – Guardianships of Incapacitated Adults; Background Screening Policy for Proposed Guardians; New and Revised Court Forms (njcourts.gov),” is attached here –
For additional information concerning guardianships and fiduciary services, visit:
Vanarelli & Li, LLC on Social Media