NJ recently updated the guardianship rules to Provide Better Protections for the Incapacitated Person. With the social commentary surrounding the #FreeBritney movement and the award-winning Netflix film, I Care a Lot, starring Golden Globe winner, Rosamund Pike, guardianships and conservatorships are publicly discussed now more than ever. The Britney Spears case in particular has shined a light on the role of a guardian or conservator and heightened the community awareness of the importance of the roles.
Recently, the New Jersey Court Rules that control guardianships were amended to provide for additional screenings of potential guardians to ensure the safety and well-being of incapacitated individuals. As of May 15, 2021, the Court Rules require that individuals applying for guardianship of an incapacitated person submit to certain background screenings. One new measure is the requirement of certain applicants to complete a self-disclosure and certification of any past criminal or civil judgments. In determining the applicant’s eligibility to serve as a guardian, the court will consider the individual’s relevant history of criminal or civil judgments to determine whether that history will affect their ability to serve as a guardian. Further, at the discretion of the Probate Part Judge handling the matter, a potential applicant may be subject to a more thorough fingerprint or computerized background check.
If a potential guardian has any relevant negative history, either criminally or civilly, they will be provided with notice and an opportunity to be heard by the court for a determination as to whether that relevant negative history will impact the applicant’s ability to perform the duties required of a guardian. If appointed, the guardian must now also provide periodic reports to the Court as to their criminal and civil judgment backgrounds, and disclose any subsequent negative activity. The individuals who are subject to these new guardianship rules, must also read and acknowledge the new policies before making a guardianship application to the Court.
As with most rules, there are exceptions, and not all potential guardians must submit to the additional screenings. These exceptions, however, are not absolute. The new rule gives authority to the Probate Judge, at their discretion, to order any prospective guardian to undergo the additional screening processes, discussed above. Individuals included in the exceptions include, but are not limited to:
- Parents, in a parent and child relationship with the alleged incapacitated person;
- Spouses married to the alleged incapacitated person;
- Financial institutions; and
- Attorneys admitted to practice law and are in good standing in the State of New Jersey.
The process of being appointed as a guardian can be difficult even without having to deal with this new set of rules and requirements. Therefore, it is always beneficial to have experienced counsel on your side.