Bill Text: NJ A2628 | 2012-2013 | Regular Session | Introduced
Bill Title: Establishes the "New Jersey Adult Guardianship and Protective Proceedings Jurisdiction Act."
Spectrum: Slight Partisan Bill (Democrat 15-9)
Status: (Introduced - Dead) 2012-06-21 - Substituted by S1755 (1R) [A2628 Detail]
Download: New_Jersey-2012-A2628-Introduced.html
Sponsored by:
Assemblyman SCOTT RUDDER
District 8 (Atlantic, Burlington and Camden)
Assemblyman TROY SINGLETON
District 7 (Burlington)
SYNOPSIS
Establishes the "New Jersey Adult Guardianship and Protective Proceedings Jurisdiction Act."
CURRENT VERSION OF TEXT
As introduced.
An Act concerning adult guardianship proceedings and revising various parts of the statutory law and supplementing Title 3B of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "New Jersey Adult Guardianship and Protective Proceedings Jurisdiction Act."
2. (New section) Scope of Act.
a. P.L. , c. (C. ) (pending before the Legislature as this bill) governs the exercise of jurisdiction over guardianship or protective orders, as those terms are defined in P.L. , c. (C. ) (pending before the Legislature as this bill), when there are interstate conflicts or uncertainty regarding this jurisdiction. The act establishes uniform procedures that are intended to be used to facilitate proceedings between courts in different states and to resolve uncertainty about appropriate jurisdiction.
b. P.L. , c. (C. ) (pending before the Legislature as this bill) is not intended to and does not alter substantive law pertaining to guardianship, conservatorship and protective proceedings or arrangements and protective orders as defined elsewhere in Title 3B of the New Jersey Statutes.
3. (New section) Definitions.
As used in P.L. , c. (C. ) (pending before the Legislature as this bill), unless otherwise defined:
a. "Adult" means an individual at least 18 years of age.
b. "Conservator" means a person appointed by the court to administer the property of an adult, including a person appointed, as appropriate, under N.J.S.3B:13A-1 et seq.
c. "Guardian" means a person appointed by the court to make decisions regarding the person or property of an incapacitated adult, including a person who has qualified as a guardian of the person or estate, or both, of an incapacitated person pursuant to court appointment in accordance with N.J.S.3B:12-1 et seq. or its equivalent in a state other than New Jersey.
d. "Guardianship order" means an order appointing a guardian.
e. "Guardianship proceeding" means a judicial proceeding in which an order for the appointment of a guardian is sought or has been issued.
f. "Home state" means the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a complaint for the appointment of a guardian or a protective order; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the complaint.
g. "Incapacitated person" means an adult for whom a guardian has been appointed.
h. "Party" means the respondent, petitioner, guardian, conservator, or any other person authorized by the court to participate in a guardianship or protective proceeding.
i. "Protected person" means an adult for whom a protective order has been issued.
j. "Protective order" means:
(1) An order related to an adult who has been declared incapacitated by a court or for whom such a declaration is sought, including but not limited to an arrangement or order related to management of the incapacitated person's property, which is issued pursuant to N.J.S.3B:12-1 and N.J.S.3B:12-2; or
(2) An order appointing a conservator, including but not limited to an order which is issued pursuant to N.J.S.3B:13A-1 et seq; or
(3) An order to protect a "vulnerable adult" as that term is defined in section 2 of P.L.1993, c.249 (C.52:27D-407), including but not limited to an order which is issued pursuant to the "Adult Protective Services Act," P.L.1993, c.249 (C.52:27D-406 et seq); or
(4) An order or arrangement, pursuant to N.J.S.3B:12-1, for a person for whom a declaration of incapacity is not sought.
k. "Protective proceeding" means a judicial proceeding in which a protective order is sought or has been issued.
l. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
m. "Respondent" means an adult for whom the appointment of a guardian or the issuance of a protective order is sought.
n. "Significant-connection state" means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.
o. "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
4. (New section) International application of the act.
A court of this State may treat a foreign country as if it were a state for the purpose of applying all sections of the P.L. , c. (C. ) (pending before the Legislature as this bill) except for sections 19 and 20 of P.L. ,c. (C. ) (pending before the Legislature as this bill) pertaining to registration.
5. (New section) Which act governs; exclusive jurisdictional basis; applicability.
P.L. , c. (C. ) (pending before the Legislature as this bill) governs jurisdiction of guardianship proceedings and provides the exclusive jurisdictional basis for a court of this State to appoint a guardian or issue a protective order. The appointment of a guardian shall continue to be governed by N.J.S.3B:12-1 et seq. and the appointment of a conservator shall continue to be governed by N.J.S.3B:13A-1 et seq.
P.L. , c. (C. ) (pending before the Legislature as this bill) act shall be construed and applied in conjunction with N.J.S.3B:12-1 et seq. and N.J.S.3B:13A-1 et seq.
6. (New section) Communication between courts.
a. A court of this State may communicate with a court of another state concerning a proceeding arising pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). The court may allow the parties to participate in the communication in accordance with the Rules Governing the Courts of the State of New Jersey.
b. Except as otherwise provided in subsection c., the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.
c. Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.
7. (New section) Cooperation between courts.
a. In a guardianship or protective proceeding, a court of this State may request the appropriate court of another state to do any of the following:
(1) hold an evidentiary hearing;
(2) order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
(3) order that an evaluation or assessment be made of the respondent;
(4) order any appropriate investigation of a person involved in a proceeding;
(5) forward to the court of this State a certified copy of the transcript or other record of a hearing under paragraph (1) or any other proceeding, any evidence otherwise produced under paragraph (2), and any evaluation or assessment prepared in compliance with an order under paragraph (3) or (4);
(6) issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person; and
(7) issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information which meets federal and state laws.
b. If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (a), a court of this State has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.
8. (New section) Taking testimony in another state; documentary evidence.
a. A court of this State may permit a witness located in another state to be deposed or to testify by any means permitted by the Rules Governing the Courts of the State of New Jersey. A court of this State shall cooperate with the court of another state in designating an appropriate location for the deposition or testimony.
b. Documentary evidence transmitted from another state to a court of this State may be admitted into evidence consistent with the New Jersey Rules of Evidence.
9. (New section) Jurisdiction; determination.
a. A court of this State has jurisdiction to appoint a guardian or issue a protective order for a respondent if:
(1) This State is the respondent's home state as defined in P.L. , c. (C. ) (pending before the Legislature as this bill); or
(2) On the date the complaint is filed, this State is a significant-connection state, as defined in P.L. , c. (C. ) (pending before the Legislature as this bill) and determined in accordance with section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill), and:
(a) the respondent either does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this State is a more appropriate forum; or
(b) the respondent has a home state, a petition for an appointment or order is not pending in a court of another state or another significant-connection state, and, before this State's court acts:
(i) a petition for an appointment or order is not filed in the respondent's home state;
(ii) an objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and
(iii) the court concludes that it is an appropriate forum under the factors set forth in section 13 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(3) Although this State does not have jurisdiction under either subsection a. or b. of this section, the home state and all significant-connection states have declined to exercise jurisdiction because this State is the more appropriate forum, and jurisdiction in this State is consistent with the New Jersey and United States Constitutions; or
b. A court of this State may assume emergency jurisdiction under section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill).
10. (New section) Significant-connection state; determination.
In determining whether a respondent has a significant connection with a particular state, the court shall consider:
a. the location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;
b. the length of time the respondent at any time was physically present in the state and the duration of any absence;
c. the location of the respondent's property; and
d. the extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services.
11. (New section) Emergency jurisdiction.
a. A court of this State lacking jurisdiction under section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill) has emergency jurisdiction to do any of the following:
(1) appoint a guardian or issue a protective order in an emergency, in accordance with subsection c. of section 12 of P.L.2005, c.304 (C.3B:12-24.1) and this section, for a respondent who is physically present in this State;
(2) appoint a guardian of real or tangible personal property located in this State for which the respondent has an ownership interest;
(3) issue a protective order with respect to real or tangible personal property in this State; or
(4) appoint, under procedures similar to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill), a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued.
b. If a petition for the appointment of a guardian or issuance of a protective order in an emergency in accordance with subsection c. of section 12 of P.L.2005, c.304 (C.3B:12-24.1) and this section is brought in this State and this State was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.
12. (New section) Exclusive and continuing jurisdiction.
Except as otherwise provided in section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill), a court that has appointed a guardian or issued a protective order consistent with P.L. , c. (C. ) (pending before the Legislature as this bill) has exclusive and continuing jurisdiction over the proceeding until the proceeding is terminated by the court, or the appointment or order expires by its own terms.
13. (New section) Appropriate forum.
a. A court of this State having jurisdiction under section 9 of P.L. , c. (C. )(pending before the Legislature as this bill) to appoint a guardian or issue a protective order may decline to exercise jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
b. If a court of this State declines to exercise jurisdiction under subsection a., it shall either dismiss or stay the proceeding. The court may impose any condition it deems just and proper, including the condition that a complaint for the appointment of a guardian or issuance of a protective order be filed promptly in another state.
c. In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:
(1) any expressed preference of the respondent;
(2) whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;
(3) the length of time the respondent was physically present in or was a legal resident of this or another state;
(4) the distance of the respondent from the court of each state;
(5) the financial circumstances of the respondent's estate;
(6) the nature and location of the evidence;
(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present evidence;
(8) the familiarity of the court of each state with the facts and issues in the proceeding; and
(9) if an appointment were to be made, the court's ability to monitor the conduct of the guardian or the conservator.
14. (New section) Jurisdiction declined by reason of conduct.
a. If at any time a court of this State determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may:
(1) decline to exercise jurisdiction;
(2) exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a complaint for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
(3) continue to exercise jurisdiction after considering:
(a) the extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;
(b) whether it is a more appropriate forum than the court of any other state under the factors set forth in subsection c. of section 13 of P.L. , c. (C. ) (pending before the Legislature as this bill); and
(c) whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. If a court of this State determines that it acquired jurisdiction to appoint a guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorneys' fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this State or a governmental subdivision, agency, or instrumentality of this State unless authorized by law other than P.L. , c. (C. ) (pending before the Legislature as this bill).
15. (New section) Notice of proceeding.
If this State was not the respondent's home state on the date a complaint for the appointment of a guardian or issuance of a protective order is filed in this State, notice of the complaint shall be given, in the same manner as notice is required to be given in this State, to the respondent and to the persons who would be entitled to notice if the regular procedures for appointment of a guardian or a conservator under the Rules Governing the Courts of the State of New Jersey were applicable.
16. (New section) Proceedings in more than one state.
Except for a complaint for the appointment of a guardian or issuance of a protective order in an emergency under paragraph (1) of subsection a. of section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill), or appointment of a guardian of property or issuance of a protective order limited to property located in this State under paragraphs (2) or (3) of subsection a. of section 11 of P.L. , c. (C. ) (pending before the Legislature as this bill) if a complaint for the appointment of a guardian or issuance of a protective order is filed in this State and in another state and neither complaint has been dismissed or withdrawn, the following shall apply:
a. A court of this State with jurisdiction under section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill) may proceed unless a court of another state acquires jurisdiction under similar provisions before the appointment or issuance of the order.
b. A court of this State without jurisdiction under section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill), whether at the time the complaint is filed or at any time before the appointment or issuance of the order, shall stay the proceeding and communicate with the court of another state. If the court in the other state has jurisdiction, the court of this State shall dismiss the complaint unless the court in the other state determines that the court of this State is a more appropriate forum.
17. (New section) Transfer of guardianship or conservatorship to another state.
a. A guardian or conservator appointed in this State may petition the court to transfer the guardianship or conservatorship to another state.
b. Notice of a petition for transfer shall be given to the persons that would be entitled to notice of a petition in this State for the appointment of a guardian or conservator.
c. On the court's own motion or upon request of the guardian or conservator, or other person required to be notified of the complaint, the court shall hold a hearing on a petition to transfer.
d. The court shall issue an order provisionally granting a petition to transfer a guardianship and direct the guardian to petition for guardianship in the other state if the court is satisfied that the guardianship will be accepted by the court of the other state and the court finds that:
(1) in the case of a guardianship of the person, the incapacitated person is physically present in or is reasonably expected to move permanently to the other state, or in the case of a guardianship of property, the incapacitated person is physically present in or is reasonably expected to move permanently to, or has a significant connection to, the other state; and
(2) an objection to the transfer has not been made or, that the transfer would not be contrary to the interests of the incapacitated person; and
(3) in the case of a guardianship of the person, plans for care and services for the incapacitated person in the other state are reasonable and sufficient, or in the case of a guardianship of property, adequate arrangements are made for management of the incapacitated person's property.
e. The court shall issue a provisional order granting a transfer a conservatorship and shall direct the conservator to petition for conservatorship in the other state if the court is satisfied that the conservatorship will be accepted by the court of the other state and the court finds that:
(1) the protected person is physically present in or is reasonably expected to move permanently to the other state, or the protected person has a significant connection to the other state considering the factors in section 10 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(2) an objection to the transfer has not been made or, that the transfer would not be contrary to the interests of the incapacitated person; and
(3) adequate arrangements will be made for management of the protected person's property.
f. The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon receipt of:
(1) a provisional order accepting the guardianship or conservatorship from the court to which the guardianship or conservatorship is to be transferred under provisions similar to section 18 of P.L. , c. (C. ) (pending before the Legislature as this bill); and
(2) the documents required to terminate a guardianship or conservatorship in this State.
18. (New section) Accepting guardianship or conservatorship transferred from another state.
a. To confirm transfer of a guardianship or conservatorship to this State under provisions similar to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill), the guardian or conservator in the other state shall file a complaint in the court of this State to accept the guardianship of the person or the person's property, or both, or the conservatorship. The complaint shall include a certified copy of the other state's provisional order of transfer.
b. Notice of a complaint under this section shall be given, in the same manner as notice is required to be given in this State, to those persons that would be entitled to notice if the complaint were for the appointment of a guardian or issuance of a protective order in both the transferring state and this State.
c. On the court's own motion or upon request of the guardian or of the conservator, or other person required to be notified of the proceeding, the court shall hold a hearing on a complaint filed pursuant to this section.
d. The court shall issue an order provisionally granting relief under this section unless:
(1) an objection is made and the court determines that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or
(2) the guardian or conservator is ineligible for appointment in this State.
e. The final order accepting the proceeding and appointing the guardian or conservator from the other state as guardian of the person or property, or both, or conservator in this State shall be issued upon the receipt by this State's court of a final order issued under provisions similar to section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill) transferring the proceeding to this State.
f. Upon application of a party or upon the court's own motion, the court shall determine whether the guardianship of the person or property, or both, or the conservatorship needs to be modified to conform to the law of this State.
g. In granting an application under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the incapacitated person's incapacity and the appointment of the guardian of the person or property, or both, or of the conservator.
h. The denial by a court of this State of an application to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian of the person or property, or both, in this State under N.J.S.3B:12-25 or as conservator under N.J.S.3B:13A-1 et seq., if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
19. (New section) Registration of guardianship or conservatorship orders.
If a guardian has been appointed in another state and an application for the appointment of a guardian of the person or property, or both, is not pending in this State, or if a conservator has been appointed in another state and an application for the appointment of a conservator is not pending in this State, the guardian or conservator appointed in the other state, after giving notice to the appointing court of an intent to register, may register the guardianship or conservatorship order in this State by filing in the Superior Court, Probate Division, in any appropriate county of this State, certified copies of the order and letters of office, and of any bond, as appropriate. For purposes of a guardian of the person, an appropriate county is any county where the guardian seeks to maintain an action or proceeding on behalf of the incapacitated person; for purposes of a guardian of the property or of a conservatorship, an appropriate county is the county where the property belonging to the incapacitated person or conservatee is located.
20. (New section) Effect of registration.
a. Upon registration of a guardianship or protective order from another state, the guardian or conservator may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian or conservator is not a resident of this State, subject to any conditions imposed upon nonresident parties.
b. A court of this State may grant any relief available under P.L. , c. (C. ) (pending before the Legislature as this bill) and other law of this State to enforce a registered order.
c. A court of this State shall recognize and enforce, but may not modify, except in accordance with section 18 of P.L. , c. (C. ) (pending before the Legislature as this bill), a registered order.
21. (New section) Uniformity of application and construction.
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
22. N.J.S.3B:12-29 is amended to read as follows:
3B:12-29. Appointment of guardian of the property for nonresident incapacitated [person] minor.
When a nonresident minor has been or shall be found to be an incapacitated person under the laws of the state or country wherein the nonresident resides, the Superior Court may appoint a guardian for the nonresident's property in this State.
(cf: P.L.2005, c.304, s.17)
23. N.J.S.22A:2-30 is amended to read as follows:
22A:2-30. Fees of surrogate and deputy clerk of the Superior Court. Fees for services of the surrogate and deputy clerk of the Superior Court enumerated below shall be as follows and shall be for the use of the county in which the fees are collected:
PROBATE OF WILLS AND COPIES
Probate of a will of not more than two pages, $100.00.
Each additional page, $ 5.00.
The above fee is for all services in preparation and execution of complaint, filing proof of death, deposition of one witness, qualification of executor, filing power of attorney, surrogate's certificate, judgment for probate, letters testamentary, plain copy of will, binding, recording, microfilming or photostating, comparing, docketing, report to the Division of Taxation in the Department of the Treasury, report and transmission to the Clerk of the Superior Court.
Probate of will of not more than two pages without letters, $50.00. Each additional page, $ 5.00. This fee is for the same services as are enumerated in the preceding paragraph, except letters, surrogate's certificate and qualification of executor.
Probate of each codicil, not exceeding one page, $25.00.
Where codicil requires an additional witness, $5.00.
To reopen probate proceedings for qualification of executor or taking proof of extra witness, $25.00.
One witness in the above probate proceedings, no charge.
Each additional witness, $5.00.
Recording and comparing, microfilming or photostating, each additional page of will or codicil, $5.00.
Filing, entering, issuing and recording, microfilming or photostating, proceedings in commission for deposition of foreign witness to a will or codicil, $35.00. Plain extra copy of will, $3.00 for each page.
Certified extra copy of will, $5.00 for each page, plus $5.00 for certificate.
Certified copy of will with proofs for New Jersey county, not exceeding two pages including will and codicil, $50.00. For pages in excess of two, $5.00 for each page.
Wills filed but not probated (as, where there are no assets), $10.00 for first two pages, $5.00 for each additional page, $5.00 for cover letter stating no assets, $5.00 for death certificate.
Exemplifying will for another state, not exceeding two pages including will and codicil, plus cost of certificate of Secretary of State when requisite, $75.00 (not including $9.00 fee for exemplified forms). For pages in excess of two, $5.00 for each page.
Recording, microfilming or photostating, docketing, indexing, filing and reporting to the Division of Taxation in the Department of the Treasury an exemplified copy of will and probate proceedings from another state, $5.00 for each page.
Recording, microfilming or photostating, docketing, indexing and filing a certified copy of will with proofs from New Jersey, $5.00 for each page.
Recording, microfilming or photostating certified transcripts of wills admitted to probate and probate proceedings or letters of administration and administration proceedings granted by the Superior Court, $5.00 for each page.
LETTERS OF TRUSTEESHIP
Acceptance of trustee and letters of trusteeship, including one certificate, $50.00.
LETTERS OF ADMINISTRATION
General administration, including preparation and execution of complaint, bond, surety affidavits, necessary recording, microfilming or photostating, indexing, filing, report to the Division of Taxation, including power of attorney and death certificate, in the Department of the Treasury and the Clerk of the Superior Court and original letters including authorization to accept service of process and death certificate, $125.00, and for other documents, $5.00 per page.
Administration ad prosequendum, $50.00, and for other documents, $5.00 per page.
Exemplifying administration, $75.00.
Certified copy of administration, $50.00.
Affidavits of surviving spouse or next of kin where the value of the real and personal assets of the estate does not exceed $20,000.00 or $10,000.00, respectively, $5.00 for each $100.00 or part thereof. Total cost shall not exceed $50.00. This fee is waived where the value of the assets of the estate does not exceed $200.00.
LETTERS OF GUARDIANSHIP
Granting letters of guardianship, acceptance of guardianship and filing of power of attorney, $50.00.
Affidavits of estates of minors where value of real and personal estate does not exceed $5,000.00, $5.00 per page.
Miscellaneous petitions and orders, $5.00 per page.
INVENTORIES
For all services in appointment of appraisers, $25.00.
Filing, entering and recording, microfilming or photostating, inventory and appraisement, not exceeding one page, and affidavits of appraisers and executor, $25.00.
For each additional page, $5.00.
ACCOUNTING
For filing complaint and one page of accounting, $175.00.
For auditing, stating, reporting and recording, microfilming or photostating, accounts of executors, administrators, guardians, trustees and assignees, including drawing judgment, but exclusive of advertising costs:
In estates up to and including $2,000.00, no additional fee.
In estates from $2,001.00 to and including $10,000.00, $100.00.
In estates from $10,001.00 to and including $30,000.00, $125.00.
In estates from $30,001.00 to and including $65,000.00, $150.00.
In estates from $65,001.00 to and including $200,000.00, 3/10 of 1% but not less than $300.00.
In estates exceeding $200,000.00--4/10 of 1%, but not less than $400.00.
For each page of accounting in excess of one, $5.00.
In computing the amount of an estate for the purpose of fixing the fees of a surrogate for auditing and reporting the account, the balance from the prior account shall be excluded.
For preparing notice of settlement of accounts and copies of the same, forwarding notice to newspaper, with directions as to publication, obtaining proofs of publication, keeping a record of notices and newspapers to which they are sent and of the moneys received to defray the cost of advertising and transmitting advertising charges to newspaper, $50.00.
No fees herein allowed shall be charged against the recipient of any pension, bounty or allowance, for services of the surrogate and the Probate Part of the Chancery Division of the Superior Court in respect thereof, pursuant to N.J.S.3B:13-9 to 3B:13-14.
MISCELLANEOUS PROCEEDINGS
Proceedings relative to presumption of death, filing, entering and recording, microfilming or photostating (exclusive of letters), with additional fee for advertising, $175.00.
Sale of land to pay debts (exclusive of advertising), $175.00.
Sale of land in fulfillment of contract made by decedent, $175.00.
Sale of lands within one year, $175.00.
Sale of minor's land, $175.00.
Distribution, filing and entering complaint, recording, microfilming or photostating, and filing judgment, $175.00.
Filing of first paper in action in the Superior Court, Chancery Division, Probate Part, $175.00.
Filing of first paper in action in the Superior Court, Chancery Division, Probate Part, pursuant to P.L. ,c. (C. )(pending before the Legislature as this bill) $175.00.
Filing of answering pleadings or other answering papers in Superior Court, Chancery Division, Probate Part (First paper filed by anyone other than Plaintiff), $110.00.
Adoption of adults, filing and entering proceedings (all papers) including one judgment, $175.00.
Adoption of minors, filing and entering proceedings (all papers) including one judgment, $175.00.
Application for relief subsequent to final judgment in the Superior Court, Chancery Division, Probate Part, $25.00.
Proceedings for the appointment of a conservator, with or without jury trial, $175.00.
Proceeding for the determination of incapacity and for the appointment of a guardian for an alleged incapacitated person, with or without jury trial, $200.00.
Proceedings in connection with payment into court of proceeds of a judgment in favor of a minor, in lieu of bond, pursuant to N.J.S. 3B:15-16 and N.J.S.3B:15-17 (in addition to fees payable under Letters of Guardianship), the following fees are payable upon withdrawal of funds on deposit:
For each withdrawal including petitions and orders provided and prepared by the surrogate for withdrawal of funds for court approval:
Up to and including $500.00, $20.00.
From $501.00 to and including $1,000.00, $25.00.
From $1,001.00 to and including $5,000.00, $30.00.
From $5,001.00 to and including $10,000.00, $35.00.
From $10,001.00 to and including $25,000, $40.00.
From $25,001.00 to and including $50,000.00, $60.00.
In excess of $50,000.00, $100.00.
MISCELLANEOUS CHARGES
Short certificates, $5.00.
Validating short certificate within one year of issue of date, $3.00.
Subpoenas, each, $25.00.
Marking true copies, subpoenas, each, $3.00.
Marking true copies, orders to show cause, each, $3.00.
Marking true copies of other papers, each, $3.00.
Authorization of process, $5.00.
Swearing each witness, $2.00.
Adjournment or continuance, $15.00.
Miscellaneous orders of court, first page, $5.00.
For each additional page, $5.00.
Recording, microfilming or photostating all papers not herein provided for, $5.00 for each page.
For making copies not otherwise provided for, $3.00 for each page.
Filing transcript of death certificate, $5.00.
Power of attorney, per page $5.00 plus $5.00 for certified mail.
Search fee, per estate $10.00.
Proceedings relative to appointment of a guardian ad litem, $25.00.
Renunciation by one person, filing, entering and recording, or photostating, $5.00. Each additional person, $3.00.
Caveat, filing or withdrawing, $25.00.
Combined refunding bond and release of not more than two pages, filing, entering, microfilming and recording, or photostating, $10.00. $5.00 for each additional page. Additional charge for county clerk's certificate, $5.00.
Release of not more than two pages of refunding bond and release, $10.00. $5.00 for each additional page. Additional charge for county clerk's certificate, $5.00.
Assignments of legacy or interest, $10.00 per page, plus $5.00 where county clerk's certificate is necessary.
Filing all papers not herein provided for, $5.00, if microfilming process is used, $5.00 per page.
Plain copy of two-page will, $6.00.
Each additional page, $3.00.
Filing of motions in the Superior Court, Chancery Division, Probate Part, $15.00.
Notice of appeal (trial court), $10.00.
Minimum charge for all other papers or services in proceedings in the Superior Court, Chancery Division, Probate Part, $5.00.
3B:14-48 Service of Process by Surrogate, $25.00.
Duplicating or copying of microfiche, digital tape, high density disks, optically scanned and recorded materials or for any other media used to record or preserve records, $150.00 per medium recorded.
Processing fee for returned check, $20.00 plus bank fee.
(cf: P.L.2005, c.370, s.14)
24. Section 48 of P.L.2005, c.304 (3B:12-66.1) is amended to read as follows:
48. Removal from New Jersey after Appointment of Guardian.
a. A guardian appointed in this State desiring to move to another state with his ward who is a minor shall obtain an order from the Superior Court of this State consenting to the [ward's] minor's removal and if applicable, the guardian's discharge. The Superior Court may transfer the guardianship to another state if the court is satisfied that a transfer will serve the best interest of the [ward] minor.
b. The [ward's] minor's removal and discharge of the guardian shall be on such terms as the Superior Court deems necessary, including requiring filing and settlement of the guardian's account and filing of an exemplified copy of the order evidencing the other state court's acceptance of jurisdiction over the guardianship and the guardian.
(cf: P.L.2005, c.304, s.48)
25. Section 49 of P.L.2005, c.304 (C.3B:12-66.2) is amended to read as follows:
49. Transfer into New Jersey of Guardianship Established in Another State.
a. A guardian or like fiduciary of a minor appointed in another state may file a summary action in the Superior Court for the transfer of the guardianship and the appointment as a guardian in this State if domicile in this State is or will be established.
b. Notice of hearing shall be given to the [ward] minor and to the persons who would be entitled to notice if the regular procedures for appointment of a guardian under the New Jersey Rules of Court were applicable.
c. The Superior Court shall grant an application for the transfer of a guardianship established in another state unless the court determines that the proposed guardianship is a collateral attack on an existing or proposed guardianship or the transfer and appointment would not be in the best interest of the [ward] minor.
d. An exemplified record of a court of competent jurisdiction evidencing the original proceeding adjudicating the [ward's] minor's incapacity and any amendment or modification orders entered subsequent to the original judgment shall be filed with the Superior Court. Subject to due process principles, full faith and credit may be accorded to a court of another state's determination of the [ward's] minor's incapacity. The Superior Court may fix the rights, powers, and duties of the guardian that the court determines are necessary to administer the [ward's] minor's person or estate, or both person and estate, in this State.
e. The guardian shall give notice of the application to transfer guardianship to the court of the other state.
(cf: P.L.2005, c.304, s.49)
26. (New section) Transitional provision.
a. P.L. , c. (C. ) (pending before the Legislature as this bill) applies to guardianship and protective proceedings filed on or after the effective date.
b. Sections 1 through 4 of P.L. ,c. (C. )(pending before the Legislature as this bill); sections 6 through 8 of P.L. , c. (C. )(pending before the Legislature as this bill); sections 17 through 21 of P.L. , c. (C. ) (pending before the Legislature as this bill); apply to proceedings begun before the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), regardless of whether a guardianship or protective order has been issued.
27. This act shall take effect on the 120th day after enactment.
STATEMENT
This bill enacts the "New Jersey Adult Guardianship and Protective Proceedings Jurisdiction Act," recommended by the New Jersey Law Revision Commission in its February 18, 2011 Final Report. This bill is modeled after "Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act" (UAGPPJA) approved in 2007 by the National Conference of Commissioners on Uniform State Laws which has been adopted in 19 states and the District of Columbia.
This bill would establish uniform procedures designed to address interstate conflicts regarding adult guardianship issues. The purpose of the bill is to provide a mechanism for consistent resolution of those cases where an adult is subject to guardianship proceedings in more than one state or in a state and another country, where he has contacts or property in each place. The bill sets forth procedures with regard to sharing of the information between courts concerning guardianship and protective proceedings. Such information includes: testimony; evidence; evaluations and assessments; transcripts; and medical, financial, criminal or other relevant information.
For consistency within the statutes, this bill will also amend two recent enactments, sections 48 and 49 of P.L.2005, c.304 (C.3B:12-66.1 and C.3B:12-66.2), concerning transfer of guardianship services between states, to make these sections applicable to only minors.
Jurisdiction
Under the provisions of the bill, a court of this State would have jurisdiction to appoint a guardian or issue a protective order for an individual for whom the appointment of a guardian or the issuance of a protective order is sought (known as respondent) if: (1) this State is that person's "home state"; or (2) on the date the petition is filed this State is a state with a "significant connection" ; or (3) if the home state and all significant connection states have declined jurisdiction. The bill defines "home state" as the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition. A state with a "significant connection" is a state, other than a home state, with which a respondent has a significant connection other than mere physical presence and where substantial evidence concerning the respondent is available. In order to determine whether a significant connection exists, the court must consider the following factors: (a) the location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding; (b) the length of time the respondent at any time was physically present in the state and the duration of any absence; (c) the location of the respondent's property; and (d) the extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services.
Communication and cooperation between Courts
This bill provides that a court of this State may communicate with a court of another state concerning a proceeding arising under this bill. The court may allow the parties to participate in the communication in accordance with the Rules Governing the Courts of the State of New Jersey. The record may be limited to the fact that the communication occurred. Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.
This bill insures communication between courts by providing that a court in this State may request the out-of-state court to hold evidentiary hearings, order evaluations or assessments be made, order a person in that state to produce evidence or give testimony, and order any other appropriate investigation. The out-of-state court would forward a certified copy of the transcript or other record of the hearing, any evidence produced, and any evaluation or assessment prepared in compliance with an order. The court in this State may request the out-of-state court to issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination. The bill also provides that the court in this State can request the out-of-state court to issue an order authorizing the release of any medical, financial, criminal, or other relevant information in that state, including protected health information which meets federal and state privacy laws. The bill also provides that an out of state court in which a guardianship or protective proceeding is pending requests assistance, a court of this State has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.
Testimony and Documentary Evidence
The bill provides that a court of this State may permit a witness located in another state to be deposed or to testify by any means permitted by the Rules Governing the Courts of the State of New Jersey. A court of this State would cooperate with the court of another state in designating an appropriate location for the deposition or testimony. Documentary evidence transmitted from another state to a court of this State may be admitted into evidence consistent with the New Jersey Rules of Evidence.
Emergency Jurisdiction
Under the bill, a court would have emergency jurisdiction even if it lacks "home state" or "significant connection" jurisdiction. Emergency jurisdiction allows the court to: (1) appoint a guardian or issue a protective order in an emergency, in accordance with subsection c of section 12 of P.L.2005, c.304 (C.3B:12-24.1), for a respondent who is physically present in this State; (2) appoint a guardian of real or tangible personal property located in this State for which the respondent has an ownership interest; (3) issue a protective order with respect to real or tangible personal property in this State; or (4) appoint a guardian or conservator for an incapacitated or protected person for whom a provisional order to transfer the proceeding from another state has been issued. The bill provides that if a petition for the appointment of a guardian or issuance of a protective order in an emergency is brought in this State and this State was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.
Exclusive and Continuing Jurisdiction
The bill provides that a court that has appointed a guardian or issued a protective order consistent with the provisions of the act would have exclusive and continuing jurisdiction over the proceedings until the proceeding is terminated by the court or the appointment or order expires on its own terms. This section exempts a court which has attained emergency jurisdiction.
Appropriate Forum
Under the provisions of the bill, a court of this State which has jurisdiction under the act may decline to exercise jurisdiction if it determines at any time that a court of another state is a more appropriate forum. Once jurisdiction is declined, the court shall either dismiss or stay the proceeding. The court may impose any condition it deems just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.
The bill enumerates the relevant factors the court must consider in making this determination which include: (1) expressed preference of the respondent; (2) whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation; (3) the length of time the respondent was physically present in or was a legal resident of this or another state; (4) the distance of the respondent from the court in each state; (5) the financial circumstances of the respondent's estate; (6) the nature and location of the evidence; (7) the ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence; (8) the familiarity of the court of each state with the facts and issues in the proceeding; and (9) if an appointment were to be made, the court's ability to monitor the conduct of the guardian or the conservator.
Decline of Jurisdiction by Reason of Conduct
If at any time a court of this State determines that it acquired jurisdiction to appoint a guardian or issue a protective order because of unjustifiable conduct, the court may: (1) decline to exercise jurisdiction; (2) exercise jurisdiction for the limited purpose to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct; or (3) continue to exercise jurisdiction.
If the court determines that it acquired jurisdiction because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorneys' fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. However, the court may not assess fees, costs, or expenses of any kind against the state.
Proceedings in more than one state
If the court has jurisdiction, the court may proceed unless a court of another state acquires jurisdiction prior to the first court making an appointment or issuing a protective order. If the court does not have jurisdiction, whether at the time the complaint is filed or at any time before the appointment or issuance of the order, the court would stay the proceeding and communicate with the other court. If the court in the other state has jurisdiction, the court of this State would dismiss the complaint unless the court in the other state determines that the court of this State is a more appropriate forum.
Transfer of Guardianship or Conservatorship to Another State
A guardian or conservator appointed in this State may petition the court, under the provisions of the bill, to transfer the guardianship or conservatorship to another state. Notice of the petition to transfer would be given to those individuals required to be given notice of a guardianship proceeding. The court is required to hold a hearing on a petition to transfer.
Under the provisions of the bill, the court issues an order provisionally granting petition to transfer a guardianship or a conservatorship if it finds that: (1) the person is physically present in or is reasonably expected to move permanently to the other state or the person has a significant connection to the other state; (2) an objection to the transfer has not been made or, that the transfer would not be contrary to the interests of the incapacitated person; and (3) plans for care and services or management of the person's property in the other state are reasonable and sufficient.
A final order is issued confirming the transfer upon receipt of a provisional order and receipt of the documents required to terminate a guardianship or conservatorship in this State.
Accepting Guardianship or Conservatorship Transferred from Another State
To confirm transfer of a guardianship or conservatorship to this State, the guardian or conservator in the other state is required to petition the court to accept the guardianship of the person or the person's property, or both, or the conservatorship. Notice is required to be given to all those parties who would receive notice in a guardianship or conservator appointment proceeding. Under the provisions of the bill, the court holds a hearing to provisionally grant relief unless: an objection is made and the court determines that transfer of the proceeding would be contrary to the interests of the incapacitated or protected person; or the guardian or conservator is ineligible for appointment in this State.
A final order is issued upon the receipt final order which transferred the proceeding to this State.
The bill also provides that the court, upon its own motion or upon an application of a party, can determine whether the guardianship or the conservatorship needs to be modified.
The court may either grant or deny the petition. A denial does not affect the ability of the guardian or conservator to seek appointment pursuant to the laws of this State, if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.
Registration of Guardianship or Conservatorship Orders and its Effect
If a guardian has been appointed in another state and an application for guardianship or conservatorship is not pending, that guardian or conservator may register the order in this State by filing with the court certified copies of the order and letters of office, and of any bond, as appropriate.
Once the orders have been registered, the guardian or conservator may exercise in this State all powers authorized in the order of appointment except as prohibited under the laws of this State, including maintaining actions and proceedings in this State and, if the guardian or conservator is not a resident of this State, subject to any conditions imposed upon nonresident parties. A court of this State can grant any relief available under this bill and other law of this State to enforce a registered order. However, a court of this State cannot modify an order.
N.J.S.A.3B:12-29
The bill amends N.J.S.A.3B:12-29, concerning appointment of guardian of the property for a non-resident, to make the provisions of that section apply to minors.
Guardianship Fee
The bill would provide for $175 fee for a filing under the provisions of this bill.
N.J.S.A.3B:12-66.1 and N.J.S.A.3B:12-66.2
This bill amends N.J.S.A.3B:12-66.1 and N.J.S.A.3B:12-66.2 to have the provisions of these sections apply to only minors. As enacted in 2005, these sections established procedures for the transfer of guardianship services when a guardian in this State is seeking to move to another state or a guardian in another state is seeking to transfer services into New Jersey.
