Kenneth Vercammen, Esq is Chair of the ABA Elder Law Committee and presents seminars to attorneys and the public on Wills, Probate and other legal topics related to Estate Planning and Elder law. He is author of the ABA's book "Wills and Estate Administration. Kenneth Vercammen is a Central Jersey trial attorney who has published 130 articles in national and New Jersey publications. He was awarded the NJ State State Bar GP Solo Practitioner of the Year. He was a speaker at the recent ABA Annual Meeting attended by 10,000 attorneys and professionals.
Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
http://www.njlaws.com/

Sunday, August 28, 2016

New rule 4:86-9. Guardians for Incapacitated Persons Under Uniform Veterans Guardianship Law Complaint for Appointment. An action for the appointment of a guardian under

4:86-9. Guardians for Incapacitated Persons Under Uniform Veterans Guardianship Law
Complaint for Appointment. An action for the appointment of a guardian under
NJS.A. 3B:13-l et seq. for [a ward] an alleged [to be a] incapacitated person shall be brought in
the Superior Court by any person entitled to priority of appointment. If there 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] alleged incapacitated person's behalf.
.(hl Complaint. The complaint shall state (1) the name, age and place of residence of
the [ ward] alleged incapacitated person; (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] alleged incapacitated person; ( 4) that such [ ward] alleged incapacitated person is
entitled to receive money payable by or through a federal agency; (5) the amount of money due
and the amount of probable future payments; and (6) that the [ward] alleged incapacitated person
has been rated [a] an incapacitated person on examination by a federal agency in accordance
with the laws regulating the same .
.(fl Proof of Necessity for Guardian of [Mentally) Incapacitated Person. A certificate
by the chief officer, or his or her representative, stating the fact that the [ward] alleged
incapacitated person has been rated [ a mentally] an incapacitated person by a federal agency on
examination in accordance with the laws and ~egula'.ticins gbveming such agency and that
appointment is a condition precedent to the paymentofmoney due the [ward] alleged
incapacitated person by such agency shall be prima facie evidence of the necessity for making an
appointment under this rule.
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@ Determination of [Mental] Incapacity. [Mental i]Incapacity 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] incapacity the [ward] alleged incapacitated
person is incapable of managing his or her property, or certifying to such other facts as shall
satisfy the court as to such [mental] incapacity.
W Appointment of Guardian; Bond. Upon proof of notice duly given and a
determination of [ mental] incapacity, 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] incapacitated person 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.
ill Termination of Guardianship When [Ward) Incapacitated Person Regains
[Mental] Capacity. If the court has appointed a guardian for the estate of [a ward] an
incapacitated person, it may subsequently, on due notice, declare the [ward] incapacitated person
to have regained [mental] capacity 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 [mental] capacity of the [ward) incapacitated person. 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
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property and the name and address of the person or institution having actual custody of the
[ ward] incapacitated person .
.{hl ... no change.
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 to 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; caption
amended, paragraphs (a) and (b) amended, paragraphs (c) and (d) captions and text amended,
paragraph ( e) amended, and paragraph (f) caption and text amended July 12, 2002 to be effective
September 3, 2002; paragraphs (a), (b), (e), and (g) amended, and paragraphs (c), (d), and (f)
caption and text amended August 1, 2016 to be effective September 1, 2016.
'.

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New rule 4:86-7. [Regaining Full or Partial Capacity] Rights of an Incapacitated Person; Proceedings for Review of GuardianshipAn individual subject to a general or limited guardianship shall retain:

4:86-7. [Regaining Full or Partial Capacity] Rights of an Incapacitated Person; Proceedings for
Review of GuardianshipAn individual subject to a general or limited guardianship shall retain:
ill The right to be treated with dignity and respect;
ill The right to privacy;
m The right to equal treatment under the law;
ill The right to have personal information kept confidential;
ill The right to communicate privately with an attorney or other advocate;
£fil The right to petition the court to modify or terminate the guardianship, including
the right to meet privately with an attorney or other advocate to assist with this legal procedure,
as well as the right to petition for access to funds to cover legal fees and costs; and
ill The right to request the court to review the guardian's actions, request removal
and replacement of the guardian, and/or request that the court restore rights as provided in
NJ.S.A. 3B:12-28.
l])l [On the commencement of a separate summary action by the incapacitated person
or an interested person on his or her behalf, supported by affidavit and setting forth facts
evidencing that the previously incapacitated person no longer is incapacitated or has returned to
partial capacity, the court shall, on notice to the persons who would be set forth in a complaint
filed pursuant to Rule 4:86-1, set a date for hearing, take oral testimony in open court with or
without a jury, and may render judgment that the person no longer is fully or partially
incapacitated, that his or her guardianship be modified or discharged subject to the duty to
account, and that his or her person and estate be restored to his or her control, or render judgment
that the guardianship be modified but not terminated.] An incapacitated person, or an interested
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person on his or her behalf, may seek a return to full or partial capacity by commencing a
separate summary action by verified complaint. The complaint shall be supported by affidavits
or certifications as described in Rule 4:86-2(b)(2), and shall set forth facts evidencing that the
previously incapacitated person no longer is incapacitated or has returned to partial
capacity. The court shall, on notice to the persons who would be set forth in a complaint filed
pursuant to Rule 4:86-1, set a date for hearing and take oral testimony in open court with or
without a jury. The court may render judgment that the person no longer is fully or partially
incapacitated, that his or her guardianship be modified or discharged subject to the duty to
account, and that his or her person and estate be restored to his or her control, or may render
judgment that the guardianship be modified but not terminated.
L£l An incapacitated person, or an interested person on his or her behalf, may seek
review of a guardian's conduct and/or review of a guardianship by filing a motion setting forth
the basis for the relief requested. ·
Note: Source-RR. 4:102-7; former R. 4:83-7 amended and rule redesignated June 29,
1990 to be effective September 4, 1990; caption and text amended July 12, 2002 to be effective
September 3, 2002; caption and text amended July 9, 2008 to be effective September 1, 2008;
caption and text of former rule deleted, new caption adopted,.new paragraphs (a), (b), and (c)
adopted August 1, 2016 to be effective September L 2016. ·

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New rule 4:86-6. Hearing; Judgment

4:86-6. Hearing; Judgment
(ill Trial. Unless a trial by jury is demanded by or on behalf of the alleged
incapacitated person, or is ordered by the court, the court [ without a jury J shall, after taking
testimony in open court, determine the issue of incapacity. [If there is no jury, t]Ihe court, with
the consent of counsel for the alleged incapacitated person, may take the testimony of a person
who has filed an affidavit or certification pursuant to R. 4:86-2(b) by telephone or may dispense
with oral testimony and rely on the affidavits or certifications submitted. Telephone testimony
shall be recorded verbatim.
(hl ... no change.
(fl Appointment of General or Limited Guardian. If a general or limited guardian of
the person or of the estate or of both the person and estate is to be appointed, the court shall
appoint and letters shall be granted to any of the following:
ill the incapacitated person's spouse, if the spouse was living with the incapacitated
person as husband or wife at the time the incapacity arose[, or to];
ill the incapacitated person's next of kin[,]; or
ill the Office of the Public Guardian for Elderly Adults [for adults] within the
statutory mandate of that office[, or if\ .
.If none of them will accept the appointment, or if the court is satisfied that no
appointment from among them will be in the best interests of the incapacitated person or estate,
then the court shall appoint and letters shall be granted to such other person who will accept
appointment as the court determines is in the best interests of the incapacitated person0
[including] Such persons may include registered professional guardians or surrogate decision-
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makers chosen by the incapacitated person before incapacity by way of a durable power of
attorney, health care proxy, or advanced directive.
Lill
ill
Judgment.
The judgment of legal incapacity and appointment of guardian shall be in such
form and include all such provisions as promulgated by the Administrative Director of the
Courts, except to the extent that the court explicitly directs otherwise.
ill Unless expressly waived therein, the judgment appointing the guardian shall fix
the amount of the bond. If there are extraordinary reasons justifying the waiver of a bond, that
determination shall be set forth in a decision supported by appropriate factual findings.
ill A proposed judgment of legal incapacity and appointment of guardian shall be
filed with the Surrogate not later than ten days prior to the hearing.
[@JW Duties of Guardian.
ill [Before letters of guardianship shall issue] Not later than 30 days after entry of the
judgment of legal incapacity and appointment of guardian, the guardian shall qualify and 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 of the estate to file with the court within 90 days of appointment an
inventory specifying all property and income of the incapacitated person's estate, unless the
court dispenses with this requirement. Within this time period, the guardian of the estate shall
also serve copies of the inventory on all next of kin and such other interested parties as the court
may direct. The order shall also require the guardian to keep the Surrogate continuously advised
of the whereabouts and telephone number of the guardian and of the incapacitated person, to
advise the Surrogate within 30 days of the incapacitated person's death or of any major change in
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his or her status or health and to report on the condition of the incapacitated person and property
as required by NJS.A. 3B:12-42.] The acceptance of appointment shall include an
acknowledgment that the guardian has completed guardianship training as promulgated by the
Administrative Director of the Courts in accordance with R. 4:86-S(b).
ill Unless expressly waived in the judgment, the guardian of the estate shall file with
the Surrogate, and serve on all interested parties, within 90 days of appointment an inventory in
such form as promulgated by the Administrative Director of the Courts specifying all property
and income of the incapacitated person's estate.
ill Unless expressly waived in the judgment, the guardian of the estate shall file with
the Surrogate reports of the financial accounting of the incapacitated person as required by
NJS.A. 3B:12-42 and in such form as promulgated by the Administrative Director of the Courts.
The report shall be filed annually unless otherwise specified in the judgment.
ill Unless expressly waived in the judgment, the guardian of the person shall file
with the Surrogate reports of the well-being of the incapacitated person as required by NJ.SA.
3B: 12-42 and in such form as promulgated by the Administrative Director of the Courts. The
report shall be filed annually unless otherwise specified in the judgment.
ill The judgment shall also require the guardian to keep the Surrogate reasonably
advised of the whereabouts and telephone number of the guardian and of the incapacitated
person, and to advise the Surrogate within 30 days of the incapacitated person's death or of any
major change in his or her status or health. As to the incapacitated person's death, the guardian
shall provide written notification to the Surrogate and shall provide the Surrogate with a copy of
the death certificate within seven days of the guardian's receipt of the death certificate.
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(fil A guardian shall cooperate fully with any Court or Surrogate staff or volunteers
until the guardianship is terminated by the death or return to capacity of the incapacitated person,
or the guardian's death, removal or discharge.
ill The guardian shall monitor the capacity of the incapacitated person over time and
take such steps as are necessary to protect the interests of the incapacitated person, including but
not limited to initiating an action for return to capacity as provided inN.JS.A. 3B:12-28 .
. ill Duties of Surrogate.
ill The Surrogate shall provide the entire complete guardianship file to the court for
review no later than seven days before the hearing.
At the time of qualification and issuance of letters of guardianship, the Surrogate
shall review the acceptance of appointment and letters of guardianship with the guardian in such
form as promulgated by the Administrative Director of the Courts.
ill The Surrogate shall issue letters of guardianship following the guardian's
qualification. The Surrogate shall record issuance of all letters of guardianship. Letters of
guardianship shall accurately reflect the provisions of the judgment.
ill The Surrogate shall record receipt of all inventories, reports of financial
accounting, and reports of well-being filed pursuant to paragraphs (e)(3) thru (e)(S) above.
ill The Surrogate shall notify the court, and shall issue notices to the guardian in
such form as promulgated by the Administrative Director of the Courts, in the event that:
~ the guardian fails to qualify and accept the appointment within 30 days after entry
of the judgment of legal incapacity and appointment of guardian in accordance with paragraph
(e)(l) above; or
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all the guardian fails to timely file inventories, reports of financial accounting, and/or
reports of well-being filed in accordance with paragraphs (e)(3) thru (e)(5) above.
ill The Surrogate shall immediately notify the court if they are informed through oral
or written communication, or become aware by other means, of emergent allegations of
substantial harm to the physical or mental health, safety and well-being, and/or the property or
business affairs, of an alleged or adjudicated incapacitated person. However, the Surrogate shall
have no obligation to review inventories, periodic reports of well-being, informal accountings, or
other documents filed by guardians, except for formal accountings subject to audit by the
Surrogate.
ill The Surrogate shall record the death of the incapacitated person.
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; paragraph (a) amended November 5,
1986 to be effective January 1, 1987; 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; paragraphs (a) and (c) amended July 12, 2002 to be
effective September 3, 2002; paragraph (a) amended July 28, 2004 to be effective September 1,
2004; paragraph (a) amended, text of paragraph (c) redesignated as paragraphs (c) and (d) and
amended, paragraph (c) caption amended, and paragraph (d) caption adopted July 9, 2008 to be
effective September 1, 2008; paragraphs (a) and (c) amended, new paragraph (d) added, former
paragraph (d) amended and redesignated as paragraph (e), and new paragraph (f) added August
1, 2016 to be effective September 1, 2016.

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New rule 4:86-5. Proof of Service; Appearance of Alleged Incapacitated Person at Hearing; Answer

New rule 4:86-5. Proof of Service; Appearance of Alleged Incapacitated Person at Hearing; Answer
Not later than ten days [P]12rior to the hearing, the plaintiff shall file proof of
service of the notice, order for hearing, complaint and affidavits or certifications and proof by
affidavit that the alleged incapacitated person 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 shall produce the alleged
incapacitated person at the hearing, unless the plaintiff and the court-appointed attorney certify
that the alleged incapacitated person is unable to appear because of physical or mental incapacity
and the court finds that it would be prejudicial to the health of the alleged incapacitated person or
unsafe for the alleged incapacitated person or others to do so. If the alleged incapacitated person
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, affidavit, or motion in
response to the complaint.]
' ) "·· .... ' ' ~-'' ·, . Prior to the hearing, unless good cause shown, but no later than prior to
qualification. any proposed guardian must complete g~ardianship training as promulgated by the
Administrative Director of the Courts. Agencies authorized to act 12ursuant to P.L.1985, c. 298
(C.52:270-20 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 this requirement.
~ The plaintiff or appointed counsel shall produce the alleged incapacitated person
at the hearing, unless the plaintiff and the court-appointed attorney certify that the alleged
incapacitated person is unable to appear because of physical or mental incapacity.
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@ If the alleged incapacitated person or any person receiving notice of the hearing
intends to appear by an attorney, such person shall, not later than ten days before the hearing,
serve and file an answer, affidavit, or motion in response to the complaint.
Note: Source-R.R. 4:102-5; caption and text of former R. 4:83-5 amended and rule
redesignated June 29, 1990 to be effective September 4. 1990; amended July 12, 2002 to be
effective September 3, 2002; caption and text amended July 9, 2008 to be effective September 1,
2008; text amended and designated as paragraph (a) and new paragraphs (b), (c), and (d) added
August 1, 2016 to be effective September 1, 2016.

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New rule 4:86-3A. Action on Complaint Review of Complaint Prior to Docketing.

New rule 4:86-3A. Action on Complaint
  Review of Complaint Prior to Docketing. Prior to docketing, the Surrogate shall
review the complaint to ensure that proper venue is laid and that it contains all information
required by R. 4:86-2.
ill Docketing.
ill Upon the filing of a complaint for the determination of incapacity of a person and
for the appointment of a guardian, if it appears that there is jurisdiction and that the complaint is
substantially complete in all respects, the complaint shall be docketed.
If, after docketing, there is a lack of jurisdiction, the court shall dismiss the
complaint forthwith. If a complaint is not substantially complete in all respects, the Surrogate
shall process the complaint in accordance with R. 1 :5-6.
!£1 Availability of Guardianship File. The Surrogate shall make the complete
guardianship file available to the court upon request.
Note: New rule adopted August 1, 2016 to be effective September 1, 2016.
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4:86-4. Order for Hearing
w Contents of Order.
ill If the court is satisfied with the sufficiency of the complaint and supporting
affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a
date for hearing,_ [and requiring]
ill The order shall require that at least 20 days' notice thereof be given to the alleged
incapacitated person, any person named as attorney-in-fact in any power of attorney executed by
the alleged incapacitated person, any person named as health care representative in any health
care directive executed by the alleged incapacitated person, and any person acting as trustee
under a trust for the benefit of the alleged incapacitated person, the alleged incapacitated
person's spouse, children 18 years of age or over, parents, the person having custody of the
alleged incapacitated person, the attorney appointed pursuant to R. 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 incapacitated person personally and upon each of the
other persons in such manner as the court directs.
ill The order for hearing shall expressly provide that appointed counsel for the
alleged incapacitated person is authorized to seek and obtain medical and psychiatric information
from all health care providers.
ill 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] may allow
shorter notice or waive notice upon a showing of gocid cause. In such case, the order shall recite
-75-
the basis for shortening or waiving notice, and proof shall be submitted at the hearing that such
basis continues to exist.
ill A separate notice shall[, in addition,] be personally served on the alleged
incapacitated person 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.
(fil The order for hearing shall require that any proposed guardian complete
guardianship training as promulgated by the Administrative Director of the Courts; however,
agencies authorized to act pursuant to P.L.1985, c. 298 (C.52:270-20 et seq.), P.L.1985, c. 145
(C.30:6D-23 et seq.), P.L.1965, c. 59(C.30:4-165.l 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 this requirement.
ill If the alleged incapacitated person is not represented by counsel, the order shall
include the appointment by the court of counsel for the alleged incapacitated person.
(hl [ Appointment and] Duties of Counsel.
ill [The order shall include the appointment by the court of counsel for the alleged
incapacitated person.] Counsel shall (i) personally interview the alleged incapacitated person;
(ii) make inquiry of persons having knowledge of the alleged incapacitated person's
circumstances, his or her physical and mental state and his or her property; (iii) make reasonable
inquiry to locate any will, powers of attorney, or health care directives previously executed by
the alleged incapacitated person or to discover any interests the alleged incapacitated person may
have as beneficiary of a will or trust.
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ill At least [three] ten days prior to the hearing date, counsel shall file a report with
the court and serve a copy thereof on plaintiffs attorney and other parties who have formally
appeared in the matter. The report shall [contain] include the following:
ill the information developed by counsel's inquiry;
fill [shall make] recommendations concerning the court's determination on the issue
of incapacity;
(iii) [ may make] any recommendations concerning the suitability of less restrictive
alternatives such as a conservatorship or a delineation of those areas of decision-making that the
alleged incapacitated person may be capable of exercising;
(iv) [and] whether a case plan for the incapacitated person should thereafter be
submitted to the court;[. The report shall further state]
W whether the alleged incapacitated person has expressed dispositional preferences
and, if so, counsel shall argue for their inclusion in the judgment of the court; and[. The report
shall also make]
( vi) recommendations concerning whether good cause exists for the court to order that
any power of attorney, health care directive, or revocable trust created by the alleged
incapacitated person be revoked or the authority of the person or persons acting thereunder be
modified or restricted.
ill If the alleged incapacitated person obtains other counsel, such counsel shall notify
the court and appointed counsel at least [five] ten days prior to the hearing date.
(c) Examination. If the affidavit or certification 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 incapacitated person to submit to an
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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.
@ Guardian Ad Litem. . .. no change . ·
~ Compensation .... no change
Note: Source - 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. 4:83-4 amended, 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
redesignated 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 l, 1996; paragraphs (a), (b), (c), (d), and (e) amended
July 12, 2002 to be effective September 3, 2002; paragraph (e) amended July 27, 2006 to be
effective September 1, 2006; paragraphs (a), (b),(c),(d) and (e) amended July 9, 2008 to be
effective September 1, 2008; paragraph (a) amended, subparagraphs enumerated and paragraphs
(a)(6) and (a)(7) adopted, paragraph (b) amended and subparagraphs enumerated, and paragraph

(c) amended August 1, 2016 to be effective September 1, 2016.

New rule 4:86-3A. Action on Complaint

New rule 4:86-3A. Action on Complaint
 Review of Complaint Prior to Docketing. Prior to docketing, the Surrogate shall
review the complaint to ensure that proper venue is laid and that it contains all information
required by R. 4:86-2.
ill Docketing.
ill Upon the filing of a complaint for the determination of incapacity of a person and
for the appointment of a guardian, if it appears that there is jurisdiction and that the complaint is
substantially complete in all respects, the complaint shall be docketed.
If, after docketing, there is a lack of jurisdiction, the court shall dismiss the
complaint forthwith. If a complaint is not substantially complete in all respects, the Surrogate
shall process the complaint in accordance with R. 1 :5-6.
!£1 Availability of Guardianship File. The Surrogate shall make the complete
guardianship file available to the court upon request.
Note: New rule adopted August 1, 2016 to be effective September 1, 2016.
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New rule 4:86-3. Disqualification of Affiant

New rule 4:86-3. Disqualification of Affiant
No affidavit or certification shall be submitted by a physician or psychologist who is
related, either through blood or marriage, to the alleged incapacitated person 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 ill in which the alleged incapacitated person is living, or in
which it is proposed to place him or her, or who is professionally employed by the management
thereof as a resident physician or psychologist, 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; amended July 12, 2002 to be effective September 3,
2002; caption and text amended July 28, 2004 to be effective September 1, 2004; amended July
9, 2008 to be effective September 1, 2008; amended August 1, 2016 to be effective September I,
2016.

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New rule 4:86-2. Complaint; Accompanying Documents: Alternative Affidavits or Certifications

New rule 4:86-2. Complaint; Accompanying Documents: Alternative Affidavits or Certifications
(!!l Complaint. The allegations of the complaint shall be verified as prescribed by
R. 1 :4-7 ~ [and shall have annexed thereto] The complaint shall state:
ill the name, age, domicile and address of the plaintiff, of the alleged incapacitated
person and of the alleged incapacitated person's spouse, if any;
ill the plaintiffs relationship to the alleged incapacitated person;
ill the plaintiffs interest in the action;
ill the names, addresses and ages of the alleged incapacitated person's children, if
any, and the names and addresses of the alleged incapacitated person's parents and nearest of
kin, meaning at a minimum all persons of the same degree of relationship to the alleged
incapacitated person as the plaintiff;
ill the name and address of the person or institution having the care and custody of
the alleged incapacitated person;
fil if the alleged incapacitated person has lived in an institution, the period or periods
of time the alleged incapacitated person has lived therein, the date of the commitment or
confinement, and by what authority committed or confined; and
ill the name and address of any person named as attorney-in-fact in any power of
attorney executed by the alleged incapacitated person, any person named as health care
representative in any health care directive executed by the alleged incapacitated person, and any
person acting as trustee under a trust for the benefit of the alleged incapacitated person.
~ Accompanying Documents. The complaint shall have annexed thereto:
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ill An affidavit or certification stating the nature, [location] description, and fair
market value [(l)] of the following, in such form as promulgated by the Administrative Director
of the Courts:
~ all real estate in which the alleged incapacitated person has or maYhave a present
or future interest, stating the interest, describing the real estate fully [ or by metes and bounds,]
and stating the assessed valuation thereof; [ and (2) ofJ
(fil all the personal estate which he or she is, will or may in all probability become
entitled to, including stocks, bonds, mutual funds, securities and investment accounts; money on
hand, annuities, checking and savings accounts and certificates of deposit in banks and notes or
other indebtedness due the alleged incapacitated person; pensions and retirement accounts,
including annuities and profit sharing plans; miscellaneous personal property; and the nature and
total monthly [ or annual] amount of any [ compensation, pension, insurance, or] income which
may be payable to the alleged incapacitated person[. If the plaintiff cannot secure such
information, the complaint shall so state and give reasons therefor, and the affidavit submitted
shall in that case contain as much information as can be secured in the exercise of reasonable
diligence]; and
(kl the encumbrance amount of any debt including any secured associated debt
related to the real estate or personal estate of the alleged incapacitated person.
f(b)JQ) Affidavits or certifications of two physicians[,] having qualifications set forth in
NJS.A. 30:4-27.2t, or the affidavit or certification of one such physician and one licensed
practicing psychologist as defined in NJS.A. 45:14B-2, in such form as promulgated by the
Administrative Director of the Courts. Pursuant to NJS.A. 3B:12-24.l(d), the affidavits or
certifications may make disclosures about the alleged incapacitated person. If an alleged
-69-
incapacitated person has been committed to a public institution and is confined therein, one of
the affidavits or certifications 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 incapacitated person is domiciled within this State but resident
elsewhere, the affidavits or certifications required by this rule may be those of persons who are
residents of the state or jurisdiction of the alleged incapacitated person's residence. Each affiant
shall have made a personal examination of the alleged incapacitated person not more than 3 0
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 )](A) the date and place of the examination;
[(2)]l]ll whether the affiant has treated or merely examined the alleged incapacitated
individual;
[(3)],(Q whether the affiant is disqualified under R. 4:86-3;
[(4)]illl the diagnosis and prognosis and factual basis therefor;
[(S)]Cfil for purposes of ensuring that the alleged incapacitated person is the same
individual who was examined, a physical description of the person examined, including but not
limited to sex, age and weight;
[ ( 6) ]CD the affiant' s opinion of the extent to which the alleged incapacitated person 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 conducf of the alleged incapacitated person upon which
this opinion is based, including a history of the alleged incapacitated person's condition; [and]
-70-
[(7)]ilil if applicable, the extent to which the alleged incapacitated person retains
sufficient capacity to retain the right to manage specific areas, such as[,] residential, educational,
medical, legal, vocational or financial decisions; and[. The affidavit should also include]
(ID an opinion on whether the alleged incapacitated person is capable of attending or
otherwise participating in the hearing and, if not, the reasons for the individual's inability[.]; and
ill A Case Information Statement in such form as promulgated by the Administrative
Director of the Courts. Said Case Information Statement shall include the date of birth and
Social Security number of the alleged incapacitated person.
(D Alternative Affidavits or Certifications.
ill If the plaintiff cannot secure the information required in paragraph (b )(l ), the
complaint shall so state and give the reasons therefor, and the affidavit or certification submitted
shall in that case contain as much information as can be secured in the exercise of reasonable
diligence.
ill In lieu of the affidavits or certifications provided for in paragraph (b )ill, an
affidavit or certification of one affiant having the qualifications as required therein shall be
submitted, stating that he or she has endeavored to make a personal examination of the alleged
incapacitated person not more than 30 days prior to the filing of the complaint but that the
alleged incapacitated person 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 may 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; paragraphs (a), (b), and (c) amended July 12, 2002 to be effective September 3, 2002;
-71-
paragraphs (b) and (c) amended July 28, 2004 to be effective September 1, 2004; paragraphs (a),
(b) and (c) amended July 9, 2008 to be effective September 1, 2008; caption amended, and
paragraphs (a), (b) and (c) amended and captions added August l, 2016 to be effective
September 1, 2016.

-

4:86-1. [Complaint] Action; Records: Guardianship Monitoring Program (;,l Every action for the determination of incapacity 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.JS.A. 3B:13-l et seq., or with respect to a kinship legal guardianship under N.JS.A. 3B:12A-1 et seq., shall be brought pursuant to R. 4:86-1 through R. 4:86-8 for appointment of a general, limited or pendente lite temporary guardian. [The complaint shall state the name, age, domicile and address of the plaintiff, of the alleged incapacitated person and of the alleged incapacitated person's spouse, if any; the plaintiffs relationship to the alleged incapacitated person; the plaintiff's interest in the action; the names, addresses and ages of the alleged incapacitated person's children, if any, and the names and addresses of the alleged incapacitated person's parents and nearest of kin; the name and address of the person or institution having the care and custody of the alleged incapacitated person; and if the alleged incapacitated person has lived in an institution, the period or periods of time the alleged incapacitated person has lived therein, the date of the commitment or confinement, and by what authority committed or confined. The con:iplaint also shall state the name and address of any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person.] £lu Judiciary records of all actions set forth in R. 4:86-l(a) shall be maintained by the Surrogate and shall be accessible pursuant to R. l :38-3(e). u;l Each vicinage shall operate a Guardianship Monitoring Program through the collaboration of the Superior Court, Chancery Division, Probate Part; the County Surrogates; and -66- the Administrative Office of the Courts, Civil Practice Division. ill The functions of guardianship support and monitoring shall be established by the Administrative Director of the Courts. Such functions shall include guardianship training and review of inventories and periodic reports of financial accounting filed by guardians as required by R. 4:86-6(e). ill Post-adjudicated case issues identified through monitoring may be forwarded for further action by the Superior Court, Chancery Division, Probate Part and/or the Administrative Office of the Courts. Ql Case monitoring issues referred to the attention of the Superior Court, Chancery Division, Probate Part shall be promptly reviewed and such further action taken as deemed appropriate in the discretion of the court. Quasi-judicial immunity shall be extended to Judiciary staff, County Surrogates, County Surrogate staff, and volunteers performing monitoring responsibilities in the Guardianship Monitoring Program. 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; R. 4:86 caption amended, and text of R. 4:86-1 amended July 12, 2002 to be effective September 3, 2002; caption to Rule 4:86 amended, and text of Rule 4:86-1 amended July 9, 2008 to be effective September 1, 2008; caption amended, former text amended and designated as paragraph (a). and new paragraphs (b) and (c) added August 1, 2016 to be effective September 1. 2016. -

New rule 4:86-1. [Complaint] Action; Records: Guardianship Monitoring Program
(;,l Every action for the determination of incapacity 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.JS.A. 3B:13-l et seq., or with respect to a kinship legal
guardianship under N.JS.A. 3B:12A-1 et seq., shall be brought pursuant to R. 4:86-1 through R.
4:86-8 for appointment of a general, limited or pendente lite temporary guardian. [The
complaint shall state the name, age, domicile and address of the plaintiff, of the alleged
incapacitated person and of the alleged incapacitated person's spouse, if any; the plaintiffs
relationship to the alleged incapacitated person; the plaintiff's interest in the action; the names,
addresses and ages of the alleged incapacitated person's children, if any, and the names and
addresses of the alleged incapacitated person's parents and nearest of kin; the name and address
of the person or institution having the care and custody of the alleged incapacitated person; and if
the alleged incapacitated person has lived in an institution, the period or periods of time the
alleged incapacitated person has lived therein, the date of the commitment or confinement, and
by what authority committed or confined. The con:iplaint also shall state the name and address of
any person named as attorney-in-fact in any power of attorney executed by the alleged
incapacitated person, any person named as health care representative in any health care directive
executed by the alleged incapacitated person, and any person acting as trustee under a trust for
the benefit of the alleged incapacitated person.]
£lu Judiciary records of all actions set forth in R. 4:86-l(a) shall be maintained by the
Surrogate and shall be accessible pursuant to R. l :38-3(e).
u;l Each vicinage shall operate a Guardianship Monitoring Program through the
collaboration of the Superior Court, Chancery Division, Probate Part; the County Surrogates; and
-66-
the Administrative Office of the Courts, Civil Practice Division.
ill The functions of guardianship support and monitoring shall be established by the
Administrative Director of the Courts. Such functions shall include guardianship training and
review of inventories and periodic reports of financial accounting filed by guardians as required
by R. 4:86-6(e).
ill Post-adjudicated case issues identified through monitoring may be forwarded for
further action by the Superior Court, Chancery Division, Probate Part and/or the Administrative
Office of the Courts.
Ql Case monitoring issues referred to the attention of the Superior Court, Chancery
Division, Probate Part shall be promptly reviewed and such further action taken as deemed
appropriate in the discretion of the court.
Quasi-judicial immunity shall be extended to Judiciary staff, County Surrogates,
County Surrogate staff, and volunteers performing monitoring responsibilities in the
Guardianship Monitoring Program.
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; R. 4:86 caption amended, and text of R. 4:86-1 amended July 12, 2002 to be effective
September 3, 2002; caption to Rule 4:86 amended, and text of Rule 4:86-1 amended July 9, 2008
to be effective September 1, 2008; caption amended, former text amended and designated as
paragraph (a). and new paragraphs (b) and (c) added August 1, 2016 to be effective September 1.
2016.

-

new rule 4:72-4. Hearing; Judgment; Publication; Filing

4:72-4. Hearing; Judgment; Publication; Filing
On the date fixed for hearing the court, if satisfied from the filed papers, with or without
oral testimony, that there is no reasonable objection to the assumption of another name by
plaintiff, shall by its judgment authorize plaintiff to assume such other name from and after the
time fixed therein, which shall be not less than 30 days from the entry thereof. At the hearing,
plaintiff must present adequate proof of his or her current name. Within 20 days after entry of
judgment, a copy thereof, from which plaintiffs social security number shall be redacted, shall
be published in a newspaper of general circulation in the county of plaintiffs residence, and
within 45 days after entry of judgment, the umedacted judgment and affidavit of publication of
the judgment shall be filed with the deputy clerk of the Superior Court in the county of venue
and a certified copy of the umedacted judgment shall be filed with the appropriate office within
the Department of Treasury. If plaintiff has been convicted ofa crime or if criminal charges are
pending, the clerk shall mail a copy of the judgment to the State Bureau of Identification.
Note: Source-R.R. 4:91-4; amended July 24, 1978 to be effective September 11,
1978; amended July 11, 1979 to be effective Septewber 10, 1979; amended July 22, 1983 to be
effective September 12, 1983; amended July 14, 1992 to be effective September 1, 1992;

amended July 13, 1994 to be effective September 1, 1994; amended June 20,

4:72-3. Notice of Application

4:72-3. Notice of Application
The court by order shall fix a date for hearing not less than 30 days after the date of the
order. Notice of application shall then be published in a newspaper of general circulation in the
county of plaintiff's residence once, at least two weeks preceding the date of the hearing. Notice
of application must be served by certified and regular mail, at least 20 days prior to the hearing
to the Director of the Division of Criminal Justice to the attention of the Records and
Identification Section. The court shall also require, in the case of a minor plaintiff, that notice be
served by registered or certified mail, return receipt requested, upon a non-party parent at that

parent's last known address.

Monday, August 22, 2016

CIVIL COMMITMENT explained in IN THE MATTER OF THE CIVIL COMMITMENT OF K.A.

IN THE MATTER OF THE 
CIVIL COMMITMENT OF K.A.
________________________________
May 31, 2016

Submitted May 17, 2016 – Decided 

Before Judges Espinosa and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. 0410-15.

Joseph E. Krakora, Public Defender, attorney for appellant K.A. (Purificacion Flores, Assistant Deputy Public Defender, on the briefs).

Frank A. Blandino, attorney for respondent State of New Jersey (J. Daniela Fama, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0

PER CURIAM
K.A. appeals from the March 10, 2015 order continuing his involuntary civil commitment pursuant to Rule 4:74-7. Because we find the judge's decision to continue the commitment was supported by clear and convincing evidence, we affirm.
K.A. was involuntarily committed on a temporary order to the Carrier Clinic on February 20, 2015. Prior to the Carrier admission he had been diagnosed with schizophrenia and treated at another hospital's crisis unit after trying to cut his wrists. It was noted upon his arrival that K.A. was non-compliant with his medications; he was not speaking nor caring for his personal needs.
At the March 10, 2015 review hearing, Advance Practice Nurse Jen Schipper and David Buch, M.D. provided testimony. Schipper was responsible for the daily care of K.A. She testified that he remained "disorganized with poor insight into his illness." Although he had shown improvement, she advised he still required prompting to take care of his personal needs such as getting out of bed and showering. Buch, the treating psychiatrist, advised that K.A.'s medications had been changed and were still being adjusted. The medical staff had been unable to contact K.A.'s family to discuss housing and assistance for him. Both medical professionals recommended continued commitment.
The judge entered an order for continued commitment noting the previous non-compliance with medications and the lack of a placement plan. K.A. was discharged from Carrier seventeen days later on March 27, 2015.
Involuntary commitment is governed by the provisions of N.J.S.A. 30:4-27.1 to -27.23 and Rule 4:74-7. A person is "[i]n need of involuntary commitment" when "mental illness causes the person to be dangerous to self or dangerous to others or property," and the person is unwilling to be voluntarily admitted to a facility for care.  N.J.S.A. 30:4-27.2(m). In the present case, K.A. was found to be "dangerous to self," which is defined by N.J.S.A. 30:4-27.2(h) to mean:
by reason of mental illness the person has threatened or attempted suicide or serious bodily harm, or has behaved in such a manner as to indicate that the person is unable to satisfy his need for nourishment, essential medical care or shelter, so that it is probable that substantial bodily injury, serious physical debilitation or death will result within the reasonably foreseeable future.
On appeal, K.A. challenges the orders continuing his involuntary commitment, arguing that the County, which had the burden of proof, In re Commitment of J.R., 390 N.J. Super. 523, 529-30 (App. Div. 2007), failed to demonstrate, by clear and convincing evidence that he was dangerous to himself as statutorily defined, and for that reason, his involuntary commitment was unlawful. In considering K.A.'s appeal, we "give[] deference to civil commitment decisions[,] and reverse[] only when there is clear error or mistake."  In re Commitment of M.M.384 N.J. Super. 313, 334 (App. Div. 2006). In making our decision we must consider the adequacy of the evidence supporting the determination to continue commitment to evaluate whether it is competent.  Ibid.
The judge's decision to continue the involuntary commitment was supported by expert testimony. It was undisputed that K.A. needed prompting to attend to all of his personal needs: getting out of bed, showering, changing his clothes, and taking his medications. Prior to the commitment, he was non-compliant with his medications and attempted to harm himself. At the time of the hearing, medical staff had been unable to contact family members in order to make a baseline assessment of K.A. and establish a placement plan for his discharge. The psychiatrist testified that K.A. suffered from "thought blocking"; the doctor was not yet sure if it was a positive or negative symptom of psychosis. These facts were sufficient to provide clear and convincing evidence for the judge's determination to continue the involuntary commitment.
Affirmed.