Capitol Report

Capitol Report

March 15, 2021

NJSBA testifies on guardianship/conservatorship bill package, urges amendments

New Jersey State Bar Association (NJSBA) members testified before the Assembly Aging and Senior Services Commission on a package of guardianship and conservatorship bills that urges stronger protections for alleged incapacitated persons and proposed conservatees. NJSBA Elder and Disability Law Section Chair Mark R. Friedman, Sharon Rivenson Mark and Shana Siegal all testified urging amendments to these bills, signaling concerns that the changes may negatively impact the retention of qualified guardians and conservators to handle such matters.

“As practitioners, we see the need to encourage ethical, knowledgeable and capable guardians and conservators,” the NJSBA said in a letter to Assemblywoman Carol Murphy, who sponsored the bills. “While they are duty-bound to act in the best interests of the alleged incapacitated person or conservatee, increasing the burdens on them could chill the already dwindling pool of individuals and counsel available to protect these individuals.”

Two of the bills, A-4615 and A-4618, propose to mandate a court-appointed attorney for the duration of a guardianship or conservatorship. The NJSBA has been studying issues surrounding the Madden system of random assignments and appointment of counsel. It cautioned that the proposed legislation presents a significant financial burden because it would require appointed counsel to represent a person until the termination of a guardianship or conservatorship, “an assignment that could last a day or decades.” The NJSBA proposed consideration of assigning representation during a proceeding itself.

The bills also mandated a formal accounting every six months. The NJSBA raised concerns over the financial obligation of such a mandate, urging judicial discretion on the issue. The bills were revised prior to the committee hearing to remove the mandate in favor of a more flexible accounting.

Another bill, A-4616, would permit the next-of-kin of a resident in long-term care or a psychiatric facility to obtain accounting statements of the resident. The NJSBA urged the sponsor to reconsider the proposal to remove “next-of-kin” in favor of an agent under financial power of attorney. The sponsor promised to review the change.

“We agree that protecting the financial interests of our state’s most vulnerable is crucial, but caution against a rule that would permit the next-of-kin to access resident’s financial records,” the NJSBA said. It further commented that the next-of-kin “could be just as likely, if not more likely, to financially exploit a vulnerable resident in long-term care than a stranger.”

Finally, A-4620 would mandate every citizen to report abuse of vulnerable adults. The NJSBA urged that this exclude the obligation on attorneys and narrow the obligation to those in a paid or professional capacity, “as they are in the best position to witness and make record of such abuse.” PLAN-NJ, a nonprofit organization that acts as guardian and trustee for these individuals, opposed the bill because the interpretation of best interest in the bill may usurp the policy behind creating “self determination” of developmentally disabled individuals to make their own decisions.

Assemblywoman Murphy promised to review the bills and consider the amendments, many of which were already being made. The bills passed the committee and the NJSBA is reviewing the amendments.

Court announces Madden exemption for pro bono services in adult guardianship matters

The Supreme Court announced last week that it will allow New Jersey attorneys who provide at least 25 hours of services in adult guardianship matters to claim an exemption from the Madden v. Delran, 126 N.J. 591 (1992) pro bono requirement for the subsequent year. The exemption is available to attorneys who are appointed by the court to serve as:

    attorney for an alleged incapacitated person

    guardian ad litem in a guardianship matter

    temporary pendente lite guardian;

    permanent guardian of an adjudicated incapacitated person or

    special medical guardian.

A copy of the full order is available at njcourts.gov.

 

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.

 

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