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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