NJSA 3B:12-24.1 Determination by the court of need for guardianship services, specific services.

3B:12-24.1  Determination by the court of need for guardianship services, specific services.
12. Determination by the court of need for guardianship services, specific services.

a.General Guardian. If the court finds that an individual is incapacitated as defined in N.J.S.3B:1-2 and is without capacity to govern himself or manage his affairs, the court may appoint a general guardian who shall exercise all rights and powers of the incapacitated person. The general guardian of the estate shall furnish a bond conditioned as required by the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.

b.Limited Guardian. If the court finds that an individual is incapacitated and lacks the capacity to do some, but not all, of the tasks necessary to care for himself, the court may appoint a limited guardian of the person, limited guardian of the estate, or limited guardian of both the person and estate.  A court, when establishing a limited guardianship shall make specific findings regarding the individual's capacity, including, but not limited to which areas, such as residential, educational, medical, legal, vocational and financial decision making, the incapacitated person retains sufficient capacity to manage. A judgment of limited guardianship may specify the limitations upon the authority of the guardian or alternatively the areas of decision making retained by the person. The limited guardian of the estate shall furnish a bond in accordance with the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.

c.Pendente lite; Temporary Guardian.

(1)Whenever a complaint is filed in the Superior Court to declare a person incapacitated and appoint a guardian, the complaint may also request the appointment of a temporary guardian of the person or estate, or both, pendente lite. Notice of a pendente lite temporary guardian application shall be given to the alleged incapacitated person or alleged incapacitated person's attorney or the attorney appointed by the court to represent the alleged incapacitated person.

(2) Pending a hearing for the appointment of a guardian, the court may for good cause shown and upon a finding that there is a critical need or risk of substantial harm, including, but not limited to:

(a)the physical or mental health, safety and well-being of the person may be harmed or jeopardized;

(b)the property or business affairs of the person may be repossessed, wasted, misappropriated, dissipated, lost, damaged or diminished or not appropriately managed;

(c)it is in the best interest of the alleged incapacitated person to have a temporary guardian appointed and such may be dealt with before the hearing to determine incapacity can be held, after any notice as the court shall direct, appoint a temporary guardian pendente lite of the person or estate, or both, of the alleged incapacitated person.

(3)A pendente lite temporary guardian appointed pursuant to this section may be granted authority to arrange interim financial, social, medical or mental health services or temporary accommodations for the alleged incapacitated person determined to be necessary to deal with critical needs of or risk of substantial harm to the alleged incapacitated person or the alleged incapacitated person's property or assets. The pendente lite temporary guardian may be authorized to make arrangements for payment for such services from the estate of the alleged incapacitated person.

(4)A pendente lite temporary guardian appointed hereunder shall be limited to act for the alleged incapacitated person only for those services determined by the court to be necessary to deal with critical needs or risk of substantial harm to the alleged incapacitated person.

(5)The alleged incapacitated person's attorney or attorney appointed by the court to represent the alleged incapacitated person shall be given notice of the appointment of the pendente lite temporary guardian. The pendente lite temporary guardian shall communicate all actions taken on behalf of the alleged incapacitated individual to the alleged incapacitated person's attorney or attorney appointed by the court to represent the alleged incapacitated person who shall have the right to object to such actions.

(6)A pendente lite temporary guardian appointment shall not have the effect of an adjudication of incapacity or effect of limitation on the legal rights of the individual other than those specified in the court order.

(7)If the court enters an order appointing a pendente lite temporary guardian without notice, the alleged incapacitated person may appear and move for its dissolution or modification on two days' notice to the plaintiff and to the temporary guardian or on such shorter notice as the court prescribes.

(8)Every order appointing a pendente lite temporary guardian granted without notice expires as prescribed by the court, but within a period of not more than 45 days, unless within that time the court extends it for good cause shown for the same period.

(9)The pendente lite temporary guardian, upon application to the court, shall be entitled to receive reasonable fees for his services, as well as reimbursement of his reasonable expenses, which shall be payable by the estate of the alleged incapacitated person or minor.

(10) The pendente lite temporary guardian shall furnish a bond in accordance with the provisions of N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by the court.

d.Disclosure of information. Physicians and psychologists licensed by the State are authorized to disclose medical information, including but not limited to medical, mental health and substance abuse information as permitted by State and federal law, regarding the alleged incapacitated person in affidavits filed pursuant to the Rules Governing the Courts of the State of New Jersey.

e.Court appearance. The alleged incapacitated person shall appear in court unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical or mental incapacity.

f.Communication.  When a person who is allegedly in need of guardianship services appears to have a receptive or expressive communication deficit, all reasonable means of communication with the person shall be attempted for the purposes of this section, including written, spoken, sign or non-formal language, which includes translation of the person's spoken or written word when the person is unable to communicate in English, and the use of adaptive equipment.

g.Additional subject areas. At the request of the limited guardian, and if the incapacitated person is not represented, after appointment of an attorney for the incapacitated person and with notice to all interested parties, the court may determine that a person is in need of guardian services regarding additional subject areas and may enlarge the powers of the guardian to protect the person from significant harm.

h.Limitations of guardian powers. At the request of the guardian, the incapacitated person or another interested person, and if the incapacitated person is not represented, after appointment of an attorney for the incapacitated person and with notice to all interested parties, the court may limit the powers conferred upon a guardian.

NJSA 3B:12-24 Issue of incapacity triable without jury unless jury is demanded.

3B:12-24. Issue of incapacity triable without jury unless jury is demanded.

In civil actions or proceedings for the determination of incapacity or for the appointment of a guardian for an alleged incapacitated person, the trial of the issue of incapacity may be had without a jury pursuant to Rules Governing the Courts of the State of New Jersey, unless a trial by jury is demanded by the alleged incapacitated person or someone on his behalf. 

NJSA 3B:12-23. Guardian for child of absconding or absent parent

3B:12-23.  Guardian for child of absconding or absent parent    If a resident of this State has or shall abscond or absent himself from the  State, leaving a child under the age of 18 without sufficient provision for his  maintenance and education, the surrogate of the county wherein the child  resides, or the Superior Court, may appoint a guardian for his person or estate  or both.  The Superior Court may revoke the appointment when it shall appear  proper.

NJSA 3B:12-22. Appointment when heirs are nonresidents

3B:12-22.  Appointment when heirs are nonresidents    When it shall appear to the Superior Court, or surrogate's court that the heirs of a minor residing in this State do not reside within this State, the court may take any action in respect to the appointment of a guardian of the person, guardian of the estate or as guardian of the person and estate for the minor as shall be to his advantage.

NJSA 3B:12-21. Persons entitled to appointment

3B:12-21.  Persons entitled to appointment    In an action for the appointment of a guardian of the person, guardian of the estate, or a guardian of the person and estate of a minor, the surrogate's court of the county wherein he resides or, if he is a nonresident, where his real or personal estate may be, or the Superior Court, upon inquiry into the circumstances, may appoint the parents or either of them or the survivor of them as the guardian of the person, guardian of the estate or guardian of the person and estate of the minor. If neither parent or the survivor of them will accept the guardianship, then the heirs, or some of them, may be appointed as guardian.  If none of the heirs will accept the guardianship, then some other person shall be appointed as the guardian of the person, guardian of the estate  or as guardian of the person and estate of the minor.  This section shall not  be construed to restrict the power of the court to appoint a substitute guardian on the application of the minor or otherwise.

NJSA 3B:12-20. Special guardian for consent to enlist; bond; fees

3B:12-20.  Special guardian for consent to enlist;  bond;  fees    When any minor, who is of an age that the consent of his parent or guardian  is necessary to enable him to enlist in the armed forces of the United States,  desires to enlist in the armed forces of the United States and has no parent or  guardian entitled to his custody and control available to sign the written  consent required for the enlistment, letters of special guardianship may be  granted by the surrogate's court of the county in which the minor resides, or  the Superior Court, empowering the special guardian to give his written consent  to the enlistment but limiting his authority and duty to that purpose.  The  guardian shall give consent only if he deems the enlistment advisable.  A bond  shall not be required from the guardian, and neither the clerk of the Superior  Court nor the surrogate shall collect any fee or charge in connection with the action for the appointment of the guardian.

NJSA 3B:12-19. Guardian for property of nonresident minor

3B:12-19.  Guardian for property of nonresident minor    Where a nonresident minor has property within this State, the Superior Court  may appoint a guardian of the minor to administer his property.  The surrogate's court shall have concurrent authority to appoint a guardian for the  property within the county.

    The Superior Court has, with respect to the property, the same authority and  control over him which it would have over a guardian of the estate of a resident minor.  In any case not provided for by statute, it shall take any action in the matter as it shall deem most for the advantage of the minor.

NJSA 3B:12-18. Effect of a testamentary appointment

3B:12-18.  Effect of a testamentary appointment    The appointment of a testamentary guardian of the person or estate of a minor or his estate shall be good and effectual against any other person claiming the guardianship over or custody of the minor or his estate, as the case may be.

NJSA 3B:12-17. Determination into fitness of a testamentary guardian of a minor's person

3B:12-17.  Determination into fitness of a testamentary guardian of a minor's person    If a will appointing a testamentary guardian of the person of a minor has been or is to be probated in the surrogate's court of any county or the Superior Court, the Superior Court may, in an action brought upon notice to the  guardian named in the will, inquire into the present custody of the minor, and  make an order touching the testamentary guardianship as may be for the best  interest and welfare of the minor.

NJSA 3B:12-16 Bond of testamentary guardian.

3B:12-16.  Bond of testamentary guardian.

Before receiving his letters, a testamentary guardian of a minor shall give bond in accordance with N.J.S.3B:15-1 et seq., unless the guardian is relieved from doing so by direction of the will of the parent appointing the guardian or by order of the court. However, regardless of the direction, the guardian shall, with respect to property to which the ward is or shall be entitled from any source, other than the parent or other than any policy of life insurance upon the life of the parent, give bond in accordance with that section before exercising any authority or control over the property.

The provisions of this section relieving a testamentary guardian of a minor from giving bond by direction of the will of the parent shall not apply to a testamentary guardian of a minor with a developmental disability.  Such guardian shall be bonded pursuant to paragraph (1) of subsection i. of N.J.S.3B:15-1, unless the guardian is relieved from doing so pursuant to paragraph (2) of subsection i. of N.J.S.3B:15-1.

NJSA 3B:12-15 Appointment of testamentary guardian by surviving parent.

3B:12-15.  Appointment of testamentary guardian by surviving parent.

If no guardian has been appointed pursuant to N.J.S.3B:12-13 and N.J.S.3B:12-14, or if the surviving parent was so appointed, the surviving parent may, by his will, appoint a guardian of the person and a guardian of the estate, or a guardian of the person and estate, of any of the parent's children, including children en ventre sa mere, who are under the age of 18 years and unmarried at the death of the surviving parent.

NSJA 3B:12-14. Consent of surviving parent; formal requisites

3B:12-14.  Consent of surviving parent;  formal requisites    Where an appointment is made under N.J.S. 3B:12-13 and the other parent survives the appointing parent, the appointment shall be effective only when the surviving parent, at or before the issuance of the letters, consents thereto in writing and signs and acknowledges the consent in the presence of two witnesses present at the same time who subscribe their names as witnesses thereto in his presence.

NJSA 3B:12-13 Power to designate testamentary guardian.

3B:12-13.  Power to designate testamentary guardian.

Subject to the provisions of N.J.S.3B:12-14, either parent may, by his will, appoint a guardian of the person and a guardian of the estate, or a guardian of the person and estate, of any of the parent's children, including children en ventre sa mere, who are under the age of 18 years and unmarried at the death of the parent.

NJSA 3B:12-12. Jurisdiction of surrogate to appoint guardians for minors

3B:12-12.  Jurisdiction of surrogate to appoint guardians for minors    In the appointment of guardians for minors, the surrogate's court of the county in which the minor may reside or if he is nonresident, then the county in which he may have real or personal estate, shall have and exercise the same powers as the Superior Court.

NJSA 3B:12-11 Affidavit of receipt; contents; filing.

3B:12-11.  Affidavit of receipt; contents; filing.

The persons making payment of money or delivery of personal property as provided in this article shall obtain from the recipient thereof, if other than a financial institution or a married minor, an affidavit signed by the recipient acknowledging receipt of the money or personal property which shall set forth the recipient's status in relation to the minor and the purpose for which the money or personal property will be used.  The affidavit shall be filed in the office of the Surrogate of the county in which the minor resides or if the minor resides outside the State, the county which has jurisdiction of the property.

Wills, Estate Planning & Probate Seminar Sponsored by Jewish Family Services May 12, 2015

Wills, Estate Planning & Probate Seminar

 Sponsored by Jewish Family Services

May 12, 2015 at 11am    

Held at Highland Park Conservative Temple - 
Congregation Anshe Emeth

201 South Third Avenue, Highland Park, NJ 08904

WILLS & ESTATE ADMINISTRATION- PROTECT YOUR FAMILY AND MAKE PLANNING EASY

SPEAKER: Kenneth Vercammen, Esq. Edison, NJ

                (Author- Answers to Questions About Probate)

      The NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills    

2. 2015 changes in Federal Estate and Gift Tax 

3. NJ Inheritance taxes on estates over $675,000

4. Power of Attorney               

5.  Living Will                                  

6.  Administering the Estate/ Probate/Surrogate    

7. Questions and Answer 

             Open to the public.      Call 732-306-0218 for info

      COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney, Living Wills, Real Estate Sales for Seniors, and Trusts.

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Send email to VercammenLaw@Njlaws.com