Bill > S4092

Introduced Session

This bill amends the law concerning the appointment of pendente lite temporary guardians for an alleged incapacitated person. Under current law, the plaintiff in a guardianship action may seek the appointment of a temporary guardian on an emergent basis, prior to a hearing to determine whether a person is actually incapacitated and in need of guardianship. Because of its emergent nature, the court can grant the appointment without a hearing. While there are situations where an alleged incapacitated person may suffer imminent harm if a temporary guardian is not appointed, the likelihood of such harm must be weighed against the person's constitutional privacy and liberty interests. Under the bill, an application for pendente lite temporary guardianship must state the reason why emergent action is required and must make certain disclosures about any proposed temporary guardian. The bill provides that the court should appoint a temporary guardian only if there is an imminent risk of harm to the alleged incapacitated person. Under current Court Rule 4:86-2, a petition for guardianship must list the alleged incapacitated person's next of kin including a spouse or domestic partner, children, and parents, and any person named as attorney-in-fact in any power of attorney executed by the alleged incapacitated person, any person named as health care representative in any health care directive executed by the alleged incapacitated person, and any person acting as trustee under a trust for the benefit of the alleged incapacitated person. In conformity with Court Rule 4:86-2, the bill requires that those same persons receive notice of both the application for pendente lite temporary guardianship and the order granting the appointment. To increase the accountability of temporary guardians, the bill requires that any payments for interim financial, social, medical, or housing services made by the temporary guardian from the alleged incapacitated person's estate must be itemized and submitted to both the court and the alleged incapacitated person's attorney. The bill also requires the temporary guardian to maintain the status quo of an alleged incapacitated person's property, personal affairs, and business affairs, and requires court approval for any sale, gift, or disposal of assets. Additionally, while the temporary guardian may receive a reasonable fee and reimbursement of expenses, the bill requires that these fees and expenses must be court authorized and are payable by the plaintiff. Under the bill, if the court appoints a temporary guardian on an emergent basis and later finds after a hearing that a temporary guardian should not have been appointed, the alleged incapacitated person has the right of equitable rescission of any contract or gift made by the temporary guardian. Finally, because a temporary guardian is appointed on an emergent basis and only meant to serve for 45 days pending the outcome of the hearing to determine actual incapacity, a temporary guardian may be ordinarily exempt from the background screening and training requirements normally required of all proposed guardians. However, if the court extends the appointment after 45 days, bill requires temporary guardians to undergo these procedures. In the sponsor's view, the guardianship process requires additional safeguards to prevent frivolous litigation, the wrongful disposal of a person's assets or the incursion of debt, abuse of the judicial process, and the unjust deprivation of personal autonomy.

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Tony Bucco (R)*, 

Introduced in the Senate, Referred to Senate Judiciary Committee (on 11/30/2023)

Official Document