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
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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.
