Bill Text: NJ A4000 | 2024-2025 | Regular Session | Amended
Bill Title: Establishes Office of Professional Corporate Guardians.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Introduced) 2024-06-06 - Reported out of Asm. Comm. with Amendments, and Referred to Assembly Health Committee [A4000 Detail]
Download: New_Jersey-2024-A4000-Amended.html
Sponsored by:
Assemblywoman CAROL A. MURPHY
District 7 (Burlington)
Assemblywoman SHANIQUE SPEIGHT
District 29 (Essex and Hudson)
SYNOPSIS
Establishes Office of Professional Corporate Guardians.
CURRENT VERSION OF TEXT
As reported by the Assembly Aging and Human Services Committee on June 6, 2024, with amendments.
An Act establishing an office of professional corporate guardians, and supplementing Titles 9, 52, and 53 of the Revised Statutes and N.J.S.3B:12-1 et seq.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act:
"Affiliate" means any company that controls, is controlled by, or is under common control with another company.
"Court" means the Superior Court.
"Disabled person" means a person, between the ages of 18 and 64 years, with a physical disability, infirmity, malformation, or disfigurement which is caused by bodily injury, birth defect, aging, or illness including epilepsy and other seizure disorders, and who, after two licensed physicians have examined and certified in writing, is deemed to be unable to physically or mentally exercise the powers granted to a general guardian.
"Estate" means all of the property of a disabled person, ward, or incapacitated person, whose affairs are subject to administration.
"Family choice guardian" means a professional corporate guardian designated by the heirs of a disabled person or an incapacitated person, either by private arrangement or court appointment, to serve as a general guardian of a disabled or incapacitated person.
"Heir" means those persons, including, but not limited to, the surviving spouse, the domestic partner and the descendants of the decedent, who are entitled under the statutes of intestate succession to the property of a decedent.
"Incapacitated person" means an adult, between the ages of 18 and 64 years, declared incapacitated by a court order and for whom a professional corporate guardian has been designated by private arrangement or court appointment.
"Minor" means a person under the age of 18 years and who has been diagnosed with a developmental or intellectual disability.
"Office" means the "Office of Professional Corporate Guardians."
"Personal choice guardian" means a professional corporate guardian, designated by a person on a preneed basis, to serve as a general guardian, by private arrangement, should the person become incapacitated or disabled.
"Professional corporate guardian" or "general guardian" means a for profit or not-for-profit business entity, corporation, partnership, limited partnership, or a limited liability company either duly formed or licensed to conduct business in New Jersey that, either by private arrangement or court appointment, has been granted the powers to exercise all assigned legal rights of a disabled or incapacitated person or a ward's property.
"Property" means anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein.
"Substitute guardian" means a guardian who is an employee of a professional corporate guardian, duly registered in the State of New Jersey as a professional guardian pursuant to P.L.2005, c.370 (C.52:27G-32 et. seq.) and who is designated, at the sole discretion of the professional corporate guardian, to provide guardianship services to a ward of a professional corporate guardian. A person who is a substitute guardian shall not be in violation of subsection e. of section 2 of P.L.2005, c.307 (C. 52:27G-33) or section 4 of P.L.2005, c.307 (C. 52:27G-35) as long as the employer of the professional corporate guardian is in compliance with this act.
"Ward" means a person for whom a professional corporate guardian is appointed by private arrangement or court appointment.
2. a. There is established, in but not of the Department Human Services, the Office of Professional Corporate Guardians. For the purpose of complying with the provisions of Article V, Section IV, paragraph 1 of the New Jersey Constitution, the Office of Professional Corporate Guardians is hereby allocated within the Department of Human Services, but notwithstanding this allocation, the office shall be independent of any supervision or control by the department or any board or officer thereof, or any other cabinet-level department, board, or officer thereof.
The purpose of the office shall be to oversee the licensing requirements and establish standards of practice for professional corporate guardians.
b. The Commissioner of Human Services shall appoint an executive director of the office, who shall be an attorney admitted to the practice of law in this State and who shall be qualified by training and experience to perform the duties of the office. The executive director shall serve at the pleasure of the commissioner, shall be knowledgeable in communication, guardianship law, and the social services available to meet the needs of persons who are disabled or incapacitated, and shall be a person of recognized judgment, integrity, objectivity, and professionalism. The executive director shall devote his entire time to the duties of the position and shall receive a salary as determined by law.
c. The office shall:
(1) adopt rules and regulations in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) to effectuate the purposes of this act;
(2) establish standards of practice for professional corporate guardians, and ensure the compliance with such standards of practice;
(3) develop criteria for qualification as a professional corporate guardian in the State;
(4) the amount to be charged in application and issuance fees for registrations authorized under this act;
(5) establish disciplinary measures for failure to uphold the practice standards established pursuant to this section, including, but not limited to, disqualifying, suspending, revoking, refusing to renew the registration of professional corporate guardians;
(6) establish procedures for organizing and conducting hearings into allegations of misconduct by registered professional corporate guardians;
(7) establish policies and
procedures for addressing conflicts of interest, prohibited activities, and
breach of fiduciary duties relating to professional corporate guardians
pursuant to section 14 of
P.L. , c. (C. ) (pending before the Legislature as this bill);
(8) develop guidelines concerning and procedures governing initial and annual guardianship reports filed by a registered professional corporate guardian; and
(9) develop and maintain a searchable database that contains and displays information on each registered professional corporate guardian. In addition, the database shall:
(a) be accessible on the Department of Human Services website; and
(b) be reviewed and updated as new information becomes available or changes are necessary.
3. An entity may serve as a professional corporate guardian if that entity has been registered by the Office of Professional Corporate Guardians pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) as a professional corporate guardian. The Office of Professional Corporate Guardians shall not register an entity as a professional corporate guardian unless that entity:
(1) is duly formed in New Jersey or is duly registered as a foreign entity and maintains an office in New Jersey;
(2) has a minimum of five substitute guardians employed directly by the entity or by an affiliate thereof;
(3) has supplied proof of current professional liability insurance coverage to the Office of Professional Corporate Guardians;
(4) has posted a fiduciary bond in accordance with the provisions of N.J.S.3B:15-1;
(5) has submitted, for any owner having a direct or indirect interest in the professional corporate guardian entity a credit check report to the Office of Professional Corporate Guardians from one national credit reporting agency, which report has been issued within one month of the date of the application for registration of the entity as a professional corporate guardian;
(6) as to any owner having a direct or indirect interest in the professional corporate guardian entity, has satisfied the criminal history record background, child abuse registry, and domestic violence central registry check requirements of P.L. , c. (C. ) (pending before the Legislature as this bill);
(7) as to any owner having a direct or indirect interest in the professional corporate guardian entity, the owner is not subject to any outstanding warrants for arrest;
(8) as to any owner having a direct or indirect interest in the professional corporate guardian entity and who is also a licensed professional guardian, has completed approved initial training and biennial continuing education courses, as provided for in section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill), relating to guardianship law, procedures and ethics; and
(9) is not otherwise ineligible as set forth in section 4 of this act.
4. a. In addition to the disqualification from registration as a professional corporate guardian pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), an entity is ineligible for registration as a professional corporate guardian or, if currently registered, may have its registration suspended or revoked pursuant to section 13 of this act, if the entity:
(1) was engaged in a business for which the entity was licensed, certified, or registered by a board or other authorized entity in the State and its license, certification or registration was suspended or revoked by the applicable board or other authorized entity;
(2) as to any owner having a direct or indirect interest in the professional corporate guardian entity, has a criminal conviction or who has been found to be civilly liable for any matter involving moral turpitude, abuse, neglect, fraud, misappropriation, misrepresentation, theft, or conversion;
(3) lacks financial responsibility to serve as a registered professional guardian, as determined by the Office of Professional Corporate Guardians;
(4) as to any owner having a direct or indirect interest in the professional corporate guardian entity, is found to have committed abuse, neglect, or exploitation of another person;
(5) as to any owner having a direct or indirect interest in the professional corporate guardian entity, is the subject of any other disciplinary decision or civil adjudication that would prohibit the person by law from providing services to children or vulnerable adults;
(6) as to any owner having a direct or indirect interest in the professional corporate guardian entity and who is also a licensed professional guardian, fails to complete the initial training or biennial continuing education courses required pursuant to this act;
(7) misrepresents, conceals or falsifies information on the registered professional corporate guardian application form or annual renewal form;
(8) is found to have committed any act which results in a substantial change in the registered professional corporate guardian's qualifications to serve as a professional corporate guardian;
(9) engages in conduct which demonstrates unfitness to serve as a registered professional corporate guardian, including, but not limited to, persistent or repeated violations of a court order or engaging in any impropriety involving dishonesty, fraud, deceit or misrepresentation;
(10) fails to cooperate during the course of an investigation by the Office of Professional Corporate Guardians or any law enforcement agency;
(11) is the subject of a court order, finding of fact, or conclusion of law that indicates:
(a) a finding that the professional corporate guardian has violated the professional corporate guardian's duties to an incapacitated person or his estate; or
(b) a failure to comply with an order of the court;
1[(13)] (12)1 knowingly or negligently engaging in misconduct which:
(a) benefits the professional corporate guardian, an owner having a direct or indirect interest thereof, or another professional corporate guardian;
(b) operates to deceive the court;
(c) causes serious or potentially serious injury to a party, the public or the legal system; or
(d) causes serious or potentially serious interference with a legal proceeding;
1[(14)] (13)1 endangers an incapacitated person;
1[(15)] 141 engages in practices that fall outside the powers or role of a guardian;
1[(16)] 151 fails, on a repeated or significant basis to perform guardian responsibilities or fiduciary duties;
1[(17)] 161 fails to file required reports and forms;
1[(18)] 171 engages in inappropriate billing or fee payment;
1[(19)] 181 fails to provide a written disclosure to a ward's heirs concerning any financial interest the professional corporate guardian may have, either directly or indirectly, in the provision of professional or licensed services to such incapacitated person;
1[(20)] 191 fails to notify the executive director of the office in writing, of any contract entered into between the professional corporate guardian and any affiliated entity for the provision of professional or licensed corporate guardian services;
1[(21)] 201 entering into a contract on behalf of a ward and without prior written approval from the executive director of the office, to provide professional or licensed corporate guardian services, which contract charges, having fees in excess of commercially reasonable rates; or
1[(22)] 211 otherwise engages in malfeasance, nonfeasance or misfeasance.
b. A registered professional corporate guardian and its substitute guardian employees shall be deemed in compliance with subsection e. of section 2 of P.L.2005, c.307 (C. 52:27G-33) or section 4 of P.L.2005, c.307 (C. 52:27G-35) as long as the professional corporate guardian is complaint with this act.
c. A registered professional corporate guardian shall maintain records of all transactions and reports associated with an incapacitated adult in the guardian's care and shall be subject to audit or unannounced inspection at any reasonable time, at the discretion of the executive director of the Office of Professional Corporate Guardians and the executive director's authorized agents, to enable the executive director to verify satisfactory operational, fiscal and care management compliance by a professional corporate guardian.
5. a. Unless otherwise provided by private arrangement, an inter vivos gift, contract, conveyance, disposition, transfer, trust, change in beneficiary designation, appointment, or re-titling of an account or property, or a testamentary instrument affecting an incapacitated adult's money or property in favor of a registered professional corporate guardian or a family member or business associate of a substitute guardian, made or executed, as appropriate, during the two-year period before the establishment of a guardianship in which the registered professional corporate guardian is appointed as guardian shall be void, unless the court determines that:
(1) the registered professional corporate guardian or a family member or business associate of a substitute guardian who benefits from the inter vivos transaction or testamentary instrument described in this subsection is a spouse, domestic partner as defined in section 3 of P.L. 2003, c.246 (C.26:8A-3) or heir at law of the incapacitated adult; or
(2) the registered professional corporate guardian has proved by a preponderance of the evidence that the inter vivos transaction or testamentary instrument described in this subsection:
(a) was not made or executed, as appropriate, when the incapacitated adult was under the disability that caused the incapacitated adult to be subsequently declared incapacitated;
(b) was authorized and not the result of undue influence, fraud, coercion, duress, deception or misrepresentation; and
(c) was reviewed by an independent attorney, who is not associated with the registered professional corporate guardian or a family member or business associate of a substitute guardian, donee, contracting party, transferee, beneficiary, title holder or devisee, and that:
(i) the independent attorney counseled the incapacitated adult about the nature and consequences of the intended inter vivos transaction or testamentary instrument described in this subsection; and
(ii) the independent attorney certified that the intended inter vivos transaction or testamentary instrument described in this subsection was not the result of undue influence, fraud, coercion, duress or misrepresentation.
The provisions of this subsection shall not be construed to affect any other right or remedy that may be available to the incapacitated adult or the estate of the incapacitated adult with respect to an inter vivos transaction or testamentary instrument, as described in this subsection that benefits a registered professional corporate guardian or a family member or business associate of a substitute guardian.
The provisions of this subsection shall not be construed to invalidate a subsequent transfer for value to a bona fide transferee from a registered professional corporate guardian.
b. Unless otherwise provided by private arrangement or otherwise authorized by court order after notice to all interested persons, a court appointed registered professional corporate guardian shall not:
(1) loan an incapacitated adult's property or funds to themselves or an affiliated entity;
(2) make, revoke or change an incapacitated adult's beneficiary designation to themselves or an affiliated entity;
(3) purchase or participate in the purchase of property from an incapacitated adult's estate for the professional corporate guardian's, own or an affiliate entity's account or benefit;
(4) transfer an incapacitated adult's property or funds by inter vivos transaction to themselves or an affiliated entity, or receive by operation of survivorship rights any of an incapacitated adult's property or funds for themselves or an affiliated entity;
(5) engage in any transaction involving self-dealing or a conflict of interest concerning an incapacitated adult's property or funds unless the professional corporate guardian is in compliance with section 4 of this act; or
(6) make any renovation to the ward's real property in an amount greater than $10,000, except that in extraordinary circumstances involving a catastrophic situation, the professional corporate guardian, may apply ex parte to the Superior Court for an order permitting the renovation.
6. a. The Office of Professional Corporate Guardians shall charge each professional corporate guardian an initial application fee and an annual registration fee. The initial application fee shall be in addition to the cost of a credit history report and the child abuse registry and criminal history record background checks for any owner of the professional corporate guardian, as applicable. Annual registration shall be made on forms furnished by the office and accompanied by the applicable fee, as established by the office. The initial application and annual registration fees shall not exceed $300. Such fees shall be retained by the office for the implementation of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. The office shall approve a vendor to provide initial training and continuing education courses biennially, in accordance with procedures to be established by the office.
7. a. Upon receipt of an application for registration as a professional corporate guardian, the Office of Professional Corporate Guardians is authorized to determine whether criminal history record information exists on file in the Federal Bureau of Investigation, Identification Division or in the State Bureau of Identification in the Division of State Police in the Office of Law and Public Safety that would disqualify any person applying for such registration from being an owner of an professional corporate guardian entity.
The office is authorized to access the child abuse registry in the Department of Children and Families and the domestic violence central registry in the Administrative Office of the Courts for the purposes of conducting the child abuse registry and the criminal history record background checks required pursuant to this section.
A person shall be disqualified from being an direct or indirect ownership of a professional corporate guardian entity if the person's criminal history record background check reveals a record of conviction of any of the following crimes and offenses:
(1) In New Jersey, any crime or disorderly persons offense:
(a) involving danger to the person, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:11-1 et seq., N.J.S.2C:12-1 et seq., N.J.S.2C:13-1 et seq., N.J.S.2C:14-1 et seq. or N.J.S.2C:15-1 et seq.;
(b) against the family, children or incompetents, meaning those crimes and disorderly persons offenses set forth in N.J.S.2C:24-1 et seq.;
(c) involving theft as set forth in chapter 20 of Title 2C of the New Jersey Statutes, or fraud relating to any health care plan or program as set forth in section 15 of P.L.1989, c.300 (C.2C:21-4.1), sections 2 and 3 of P.L.1997, c.353 (C.2C:21-4.2 and 2C:21-4.3), P.L.1999, c.162 (C.2C:21-22.1) or section 17 of P.L.1968, c.413 (C.30:4D-17); or
(d) involving any controlled dangerous substance or controlled substance analog as set forth in chapter 35 of Title 2C of the New Jersey Statutes except paragraph (4) of subsection a. of N.J.S.2C:35-10.
(2) In any other state or jurisdiction, of conduct which, if committed in New Jersey, would constitute any of the crimes or disorderly persons offenses described in paragraph (1) of this subsection.
A person shall also be disqualified from being an owner of a professional corporate guardian entity if a check of the child abuse registry reveals that the person has a history of child abuse.
In a case in which a check of the domestic violence central registry reveals that the person has a history of domestic violence, the office shall review the record with respect to the type and date of the criminal offense or the provisions and date of the final domestic violence restraining order and make a determination as to the suitability of the person to be an owner of a professional corporate guardian entity.
b. Notwithstanding the provisions of subsection a. of this section to the contrary, no person shall be disqualified from being an owner of a professional corporate guardian entity on the basis of any conviction disclosed by a criminal history record background check performed pursuant to this act if the person has affirmatively demonstrated to the office clear and convincing evidence of the applicant owner's rehabilitation. In determining whether a person has affirmatively demonstrated rehabilitation, the following factors shall be considered:
(1) the nature and responsibility of the position which the person would hold, has held or currently holds, as the case may be;
(2) the nature and seriousness of the offense;
(3) the circumstances under which the offense occurred;
(4) the date of the offense;
(5) the age of the person when the offense was committed;
(6) whether the offense was an isolated or repeated incident;
(7) any social conditions which may have contributed to the offense; and
(8) any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, work history, or the recommendation of those who have had the person under their supervision.
c. If a person refuses to consent to, or cooperate in, the securing of a criminal history record background check, the office shall not register the applicant entity as a professional corporate guardian and shall notify all owners identified on the application of that denial.
8. a. An owner of an applicant entity or an owner of a registered professional corporate guardian who is required to undergo a criminal history record background, child abuse registry and domestic violence central registry check pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall submit to the Office of Professional Corporate Guardians, the person's name, address and fingerprints, in accordance with the applicable State and federal laws, rules and regulations. The office is authorized to exchange fingerprint data with and receive criminal history record information from the Federal Bureau of Investigation and the Division of State Police for use in making the determinations required pursuant to this act.
b. Upon receipt of the criminal history record information for a person from the Federal Bureau of Investigation or the Division of State Police, the office shall, within a reasonable time, notify all owners of the applicant entity in writing of the entity's qualification or disqualification for registration under this act. If the applicant entity is disqualified, the conviction or convictions which constitute the basis for the disqualification shall be identified in the notice to the person and all other owners of the entity.
c. Upon receipt of the information for a person from the child abuse registry in the Department of Children and Families or the domestic violence central registry in the Administrative Office of the Courts, the office shall, within a reasonable time, notify all owners of the applicant entity in writing of the entity's qualification or disqualification for registration as a professional corporate guardian under this act. If the person is disqualified, the incident or incidents which constitute the basis for the disqualification shall be identified in the notice to the person and all other owners of the entity.
d. The person has a right to be heard by the office, within 30 days from the date of the written notice of disqualification, on the accuracy of the person's criminal history record, child abuse registry or domestic violence central registry information or to establish the person's rehabilitation under subsection b. of section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill). Upon the issuance of a final decision by the office, pursuant to this subsection, the office shall notify the person and all other owners of the applicant entity as to whether the entity remains disqualified. A person disputing an adverse determination by the office may file with the Office of Administrative Law for an administrative hearing.
9. a. In accordance with
sections 7 and 8 of P.L. ,
c. (pending before the Legislature as this bill), the Division of State
Police in the Department of Law and Public Safety shall conduct a criminal
history record background check, including a name and fingerprint
identification check, of each person that is a direct or indirect owner of an applicant entity seeking
registration as a professional corporate guardian who is required to undergo a
criminal history record background check pursuant to P.L. ,
c. (pending before the Legislature as this bill).
b. For the purpose of conducting a criminal history record background check pursuant to subsection a. of this section, the Division of State Police shall examine its own files and arrange for a similar examination by federal authorities. The division shall immediately forward the information obtained as a result of conducting the check to the executive director of the Office of Professional Corporate Guardian.
c. The Division of State Police shall promptly notify the Office of Professional Corporate Guardians in the event a person who is required to undergo a criminal history record background check pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) is convicted of a crime or offense in this State after the date the background check was performed. Upon receipt of such notification, the office shall make a determination regarding the continuation of the registration of the applicant entity as a professional corporate guardian.
10. a. In accordance with the provisions of sections 7 and 8 of P.L. , c, (C. ) (pending before the Legislature as this bill), the Department of Children and Families shall conduct a check of its child abuse registry for each person listed on an application as an owner of the applicant entity seeking registration as a professional corporate guardian who is required to undergo such a check pursuant to P.L. , c. (C ) (pending before the Legislature as this bill). The department shall immediately forward the information obtained as a result of the check to the Office of Professional Corporate Guardians.
b. The department shall promptly notify the office in the event a person who is required to undergo a check of the child abuse registry pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), is listed in the registry after the date the child abuse registry check was performed. Upon receipt of such notification, the office shall revoke the registration of the professional corporate guardian entity of which the person is an owner.
11. An entity seeking registration as a professional corporate guardian shall assume the cost of the criminal history record background and child abuse registry checks conducted pursuant to this act, in accordance with any regulations adopted by the Office of Professional Corporate Guardians.
12. a. The Office of Professional Corporate Guardians shall maintain a Statewide, searchable Internet database of registered professional corporate guardians, and make all information in the registry available to the Administrative Director of the Courts for the use of the Superior Court, or to other interested parties upon request. The registry shall include the following information for each registered professional corporate guardian and each owner, as applicable:
(1) full name of the entity and full name of the entity's owner;
(2) date of formation of the entity and date of birth of the entity's owner;
(3) business address;
(4) business telephone number;
(5) each owner's educational background and professional experience, including work in any related field germane to the provision of guardianship services;
(6) whether the professional corporate guardian entity or the entity's owner meets applicable registration requirements;
(7) the insurance company issuing the registered professional corporate guardian's professional liability insurance coverage; and
(8) the fiduciary bond posted by a professional corporate guardian in the manner required by N.J.S.3B:15-1.
b. In addition to the information listed in subsection a. of this section, if known to the office, the registry shall include the following information for each owner of a professional corporate guardian entity:
(1) whether that person has ever been removed for cause or resigned as a professional guardian in a specific case, the circumstances of the removal or resignation, and the case names, court locations and case numbers;
(2) any judgment entered against the person as a result of the performance of services as a professional guardian;
(3) any finding by a court that the person is accountable for malfeasance, nonfeasance, or misfeasance;
(4) any finding by a court that the person has violated a professional guardian's duties to an incapacitated adult or an incapacitated adult's estate;
(5) the number and type of substantiated complaints made against the professional guardian; and
(6) any known pending or final registration or disciplinary actions taken by the office against the professional guardian.
13. The Office of Professional Corporate Guardians may suspend or revoke an entity's registration as a professional corporate guardian and remove the entity from the Statewide registry established pursuant to section 12 of P.L. , c. (C. ) (pending before the Legislature as this bill) if:
a. the office has reasonable cause to suspect the trustworthiness or capability of the professional corporate guardian to perform the duties of a professional corporate guardian; or
b. the entity is no longer in compliance with the requirements of section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill) or becomes ineligible for registration as a professional corporate guardian as provided for in subsection a. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).
Notice of the suspension or revocation of the registration and removal from the registry shall be sent, within 30 days, to the Administrative Office of the Courts and the known local Surrogates on behalf of the Superior Court, Chancery Division, Probate Part having jurisdiction over the professional corporate guardian's wards and the heirs of the disabled person or incapacitated person.
14. a. The powers and duties of a professional corporate guardian shall be the same as the powers and duties of a guardian of the person of a ward as enumerated in N.J.S.3B:12-56 and N.J.S.3B:12-57.
b. In addition to the powers and duties enumerated in N.J.S.3B:12-56 and N.J.S.3B:12-57, a professional corporate guardian shall:
(1) file with the Office of Professional Corporate Guardians within sixty days after designation by private arrangement, or receiving letters of guardianship, an initial guardianship report, and annually thereafter, in accordance with guidelines established by the office;
(2) advocate on behalf of the ward in institutional and other residential settings, including but not limited to, advocating for the ward to receive home and community-based services;
(3) allow the ward to maintain contact with family and friends unless the guardian believes such contact is not in the ward's best interest;
(4) not restrict the ward's physical movements any more than necessary to protect the ward or another person from serious physical injury, illness, or disease;
(5) assess the need for any additional services the ward may need, taking into account all aspects the ward's social, psychological, educational, direct service, and health and personal care needs; and
(6) perform any other duties required by law.
15. a. A professional corporate guardian may designate a substitute guardian to exercise all of the powers and duties of the professional corporate guardian in the event that the general guardian is unable or unavailable to provide guardianship services to a disabled or incapacitated person or otherwise delegates such powers or duties in its capacity as the employer of the substitute guardian.
b. A person designated as a substitute guardian under this section shall be registered as a professional guardian pursuant to P.L.2005, c.370 (C. 52:27G-32 et seq.), subject to the provisions of this act.
c. A person designated as a
substitute guardian under this section shall complete the approved initial
training and biennial continuing education courses, as provided for in section
6 of
P.L. , c. (C. ) (pending before the Legislature as this bill).
d. (1) The designation of a substitute guardian by a professional corporate guardian to provide guardianship services to a disabled or incapacitated person shall not limit the responsibility of a professional corporate guardian to its ward.
(2) The professional corporate guardian shall be liable for the acts of the substitute guardian in providing guardianship services pursuant to subsection a. of this section, unless the substitute guardian has engaged in fraud, acts of gross negligence or willful misconduct, or has committed intentionally malicious or criminal acts.
e. A professional corporate guardian has the sole discretion to terminate the authority of a substitute guardian to provide guardianship services to its ward or wards if the substitute guardian fails to complete the training and education requirements pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill.
16. A professional corporate guardian may apply to the court for judicial appointment to serve as a family choice or personal choice guardian pursuant to sections 17 and 18 of P.L. , c. (C. ) (pending before the Legislature as this bill) in accordance with Rule 4:86 et seq. of the Rules Governing the Courts of the State of New Jersey.
17. a. The heir of a disabled person or the guardian of an incapacitated person may designate, by private arrangement and pursuant to the terms of a written contract, a family choice guardian to serve as the general guardian of the disabled or incapacitated person.
b. (1) The appointment of a family choice guardian by private arrangement shall be valid if all of the following criteria are met:
(a) the heir or the guardian shall enter into a written contract with a professional corporate guardian registered with the Office of Professional Corporate Guardians pursuant to P.L. , c. (C. ) (pending for the Legislature as this bill) to serve as the family choice guardian;
(b) the heir or the guardian shall provide all notices required pursuant to the provisions of Rule 4:80-6 of the Rules Governing the Courts of the State of New Jersey; and
(c) the heir or the guardian shall submit written notice to the Office of Professional Corporate Guardians containing information concerning the professional corporate guardian designated by the heir or guardian as a family choice guardian pursuant to subsection a. of this section within 10 days of the effective date of the contract, and enclose a notarized copy of the contract with such notice.
(2) A family choice guardian designated by private arrangement to serve as guardian of the disabled or incapacitated person shall be subject to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
c. Whenever a complaint is filed in the Superior Court to declare a person incapacitated and appoint a guardian pursuant to N.J.S.3B:12-1 et seq., the complaint may also request the appointment of a registered professional corporate guardian, who has applied to the court for judicial appointment pursuant to section 14 of P.L. , c. (C. ) (pending before the Legislature as this bill), to serve as the family choice guardian of the person or the person's estate, or both.
d. The professional corporate guardian appointed by the court as a family choice guardian pursuant to subsection c. of this section shall apply to the court in a summary manner, within 20 days after assumption of the guardian's duties, for a judgment confirming that appointment. After confirmation by the court, the family choice guardian shall furnish a bond to secure performance of the guardian's duties with respect to the person or the person's estate, or both, unless the guardian is relieved from doing so by the court.
18. a. A person may designate, by private arrangement and pursuant to the terms of a written declaration, a professional corporate guardian to serve as a personal choice guardian, should the person become disabled or incapacitated.
b. (1) The designation of a personal choice guardian by private arrangement shall be valid if all of the following criteria are met:
(a) the person shall designate, in writing, a professional corporate guardian registered with the Office of Professional Corporate Guardians pursuant to P.L. , c. (C. ) (pending for the Legislature as this bill) to serve as a personal choice guardian;
(b) the written declaration shall:
(i) identify the declarant and the professional corporate guardian chosen to serve as a personal choice guardian;
(ii) be signed by the declarant in the presence of at least two attesting witnesses; and
(iii) constitute a rebuttable presumption that the personal choice guardian designated by the declarant is entitled to serve as a guardian;
(c) the declarant shall provide all notices required pursuant to the provisions of Rule 4:80-6 of the Rules Governing the Courts of the State of New Jersey; and
(d) the declarant shall submit written notice to the Office of Professional Corporate Guardians containing information concerning the professional corporate guardian designated by the declarant as a personal choice guardian pursuant to subsection a. of this section within 10 days of assumption of the guardian's duties should the declarant become disabled or incapacitated, and enclose a notarized copy of the written declaration with such notice.
(2) The personal choice guardian shall assume the duties of a declarant's guardian immediately upon the declarant becoming a disabled or incapacitated person.
c. Whenever a complaint is filed in the Superior Court to declare a person incapacitated and appoint a guardian pursuant to N.J.S.3B:12-1 et seq., the complaint may also request the appointment of a registered professional corporate guardian, who has applied to the court for judicial appointment pursuant to section 14 of P.L. , c. (C. ) (pending before the Legislature as this bill), to serve as the personal choice guardian of the person or the person's estate, or both.
d. The professional corporate guardian appointed by the court as a personal choice guardian pursuant to subsection c. of this section shall apply to the court in a summary manner, within 20 days after assumption of the guardian's duties, for a judgment confirming that appointment. After confirmation by the court, the personal choice guardian shall furnish a bond to secure the performance of the guardian's duties with respect to the person or the person's estate, or both, unless the guardian is relieved from doing so by the court.
19. a. The authority and responsibility of a professional corporate guardian of a disabled or incapacitated person terminate upon the:
(1) resignation or removal of the general guardian;
(2) death of the disabled or incapacitated person;
(3) termination of the private arrangement designating the professional corporate guardian by the general guardian or by the ward or the ward's heirs; or
(4) entry of a judgment adjudicating the restoration of competency pursuant to N.J.S.3B:12-28 or termination of guardianship for other reasons.
b. Termination of guardianship does not affect the general guardian's liability for prior acts, nor the general guardian's obligation to account for funds and assets of the ward. Resignation of a judicially appointed guardian does not terminate the guardianship unless it has been approved by a judgment of the court.
c. Upon termination of the guardianship, the guardian shall pay over and distribute all funds and properties of the former ward or of the estate of the former ward in accordance with an order of the court or pursuant to private arrangement. Upon termination of a professional corporate guardian that was designated by private arrangement, the former general guardian shall immediately notify the executive director and file a closing report.
20. a. A vacancy in a professional corporate guardianship shall be deemed to arise when a professional corporate guardian dies, resigns, is removed, or is discharged after entering into but before completing the duties of the guardian's office. The resignation of a judicially appointed professional corporate guardian that was judicially appointed shall not be effective unless approved by a judgment of the Superior court.
b. The court shall have jurisdiction to fill a vacancy in a professional corporate guardianship by the appointment of another court-appointed professional corporate guardian prior to the resignation, removal, or discharge of the original guardian. A professional corporate guardian, who has been designated by private arrangement, but who later resigns or is terminated may be immediately replaced with a successor professional corporate guardian designated by private arrangement by the ward or the ward's heirs by private arrangement.
21. a. The Commissioner of Human Services, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), may adopt rules and regulations necessary for the implementation of this act.
b. The Supreme Court may adopt Rules of Court necessary for the implementation of this act.
22. This act shall take effect on the 180th day after the date of enactment, except that the Commissioner of Human Services may take such anticipatory administrative action, in advance, as shall be necessary for the implementation of this act, and the Supreme Court of New Jersey may adopt Rules of Court, in advance, as shall be necessary for the implementation of the provisions of this act.
