New Guardian Background Screening Rules in New Jersey

While probably unrelated, the timing of the new guardianship rules being imposed on New Jersey Guardianships seems to coincide with “I Care a Lot”, the recent movie grabbing attention relating to guardianship matters. While the character depicted in the movie is an extreme example (and, in some cases, an exaggeration) of what can go wrong when a guardian is appointed, the courts are well aware of the realities of abuse of individuals with disabilities, and the new guardianship rules have been put in place to provide further protections for incapacitated persons. Specifically, the Supreme Court of New Jersey has amended Rules 4:86-2 (Complaint; Accompanying Documents; Alternate Affidavits or Certifications), 4:86-4 (Order for Hearing), and 4:86-6 (Hearing; Judgment), to provide for background screening of certain proposed guardians for incapacitated persons, which affect all guardianship petitions filed on or after May 15, 2021.

These amendments are intended to further protect incapacitated persons from guardians appointed by the court by subjecting certain proposed guardians to a check of judiciary systems, fingerprint records for New Jersey residents or computerized criminal history checks for out of state residents and, at the discretion of the Judge, a certified judgment search. Additionally, proposed guardians must self-disclose and certify to any criminal and civil judgment history by completing the form Certification, acknowledge receipt of and compliance with the policy, and provide periodic reports to the court of any changes to their criminal and civil judgment history.

There are certain exceptions to the new rules relating to background checks. Specifically, proposed guardians who will likely not be subject to the background screening include:

1. Parents as defined by the New Jersey Parentage Act, N.J.S.A. 9:17-39;

2. Individuals who are married to an alleged incapacitated person in accordance with N.J.S.A. 37:1-29 et seq., in a civil union with an alleged incapacitated person as defined by N.J.S.A. 37:1-29, or in a domestic partnership with an alleged incapacitated person as defined by N.J.S.A. 26:8A-3;

3. Pendente lite temporary guardians appointed pursuant to N.J.S.A. 3B:12-24.1(c);

4. Agencies authorized to act pursuant to P.L.1985, c. 298 (C.52:27G-20et 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.);

5. Public officials appointed as limited guardians of the person for medical purposes for individuals in psychiatric facilities listed in R.S.30:1-7;

6. Banks, trust companies, credit unions, savings and loan associations, or other financial institutions duly licensed or authorized to conduct business under applicable state or federal laws; and

7. Attorneys admitted to practice law and in good standing in the State of New Jersey.

Notwithstanding the above, the court may still require a proposed guardian to undergo the background screening based on the facts of the case, including but not limited to the value of the guardianship estate.

The mere fact that a proposed guardian has a criminal or civil judgment history will not automatically disqualify the individual from serving as guardian. A proposed guardian with a criminal or civil judgment history will be afforded an opportunity to be heard on the record why such history would not adversely affect the proposed guardian’s ability to perform the duties and responsibilities of guardianship in the best interests of the incapacitated person or estate before the court decides to appoint or preclude appointment of the guardian. In appropriate cases, the Judge will evaluate the facts on the following nine (9) factors:

1. The nature and seriousness of the offense or misconduct;

2. The circumstances under which the offense or misconduct occurred;

3. The date of the offense or misconduct and the age of the proposed guardian when the offense or misconduct was committed;

4. The disposition of the offense or misconduct;

5. Whether the offense or misconduct was an isolated event;

6. Evidence of rehabilitation;

7. Whether the offense or misconduct is relevant to the responsibilities of a guardian;

8. The vulnerability of the incapacitated person; and

9. Whether appointing the proposed guardian diminishes the public trust in the Judiciary.

For more information about guardianship petitions, please see our November 2020 newsletter, “When is a Guardianship Appropriate?” We at Pashman Stein Walder Hayden, P.C. have assisted many families in guardianship matters. If you need assistance with your loved one’s guardianship petition, please contact us.