SENATE HEALTH, HUMAN SERVICES AND SENIOR CITIZENS COMMITTEE

 

STATEMENT TO

 

SENATE, No. 1755

 

with committee amendments

 

STATE OF NEW JERSEY

 

DATED:  MAY 17, 2012

 

      The Senate Health, Human Services and Senior Citizens Committee reports favorably and with committee amendments Senate Bill No. 1755.

      As reported, this amended bill establishes 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.  The bill is modeled after the “Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act” approved in 2007 by the National Conference of Commissioners on Uniform State Laws.  To date, this model act has been adopted in more than thirty states.

      This bill would establish uniform procedures to resolve interstate conflicts and uncertainty in cases when an adult is subject to guardianship proceedings in more than one state, or in a state and another country, where the adult has contacts or property in each place.  In addition to setting forth mechanisms by which primary jurisdiction can be determined, the bill addresses communications  and the sharing of information between courts concerning guardianship and protective proceedings.

      Jurisdiction

      The bill sets forth the procedures to be followed to resolve a variety of jurisdictional issues that may arise in guardianship proceedings concerning an individual.  These issues include the appointment of a guardian or issuance of a protective order, communications between courts in more than one jurisdiction, permitting parties to participate in those communications, providing for the deposition and testimony of witnesses, transmission of documentary evidence from another jurisdiction to a court of this State, provisions for the exercise of emergency jurisdiction, provisions for a court of this State to decline to exercise jurisdiction if it determines that a court of another state is the more appropriate forum, and resolving situations when proceedings concerning an individual have begun in more than one state.

      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 if: (1) this State is that individual’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.  The bill sets forth the various factors to be considered by the court in making this jurisdictional determination.

      Communication and Cooperation Between Courts

      The bill provides that a court in this State may communicate with a court of another state concerning a proceeding and allow parties to participate in the communication, in accordance with the Rules Governing the Courts of the State of New Jersey.  The bill specifies that a court of this State may request that the out-of-state court hold evidentiary hearings and issue various orders, as appropriate.

      Testimony and Documentary Evidence

      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, and a court of this State would be required to cooperate with the court of another state in arranging 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

      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 for a respondent who is physically present in this State, in accordance with State law; (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.

      Exclusive and Continuing Jurisdiction

      Except in cases where a court has attained emergency jurisdiction, a court that has appointed a guardian or issued a protective order pursuant to the provisions of the bill would have exclusive and continuing jurisdiction over the proceedings until the proceeding is terminated by the court or the appointment or order expires.  

      Appropriate Forum

      The bill provides that a court of this State having jurisdiction could decline to exercise jurisdiction if it determined at any time that a court of another state were the more appropriate forum.  Once jurisdiction is declined, the court would have to dismiss or stay the proceeding.

      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.

      Proceedings in More Than One State

      If the court has jurisdiction, the court may proceed unless a court of another state acquired jurisdiction prior to the first court making an appointment or issuing a protective order.  If the court does not have jurisdiction, 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 petition, 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 and Acceptance of Guardianship from Another State

      The bill provides that a guardian or conservator appointed in this State may petition the court to transfer the guardianship or conservatorship to another state and sets forth the procedural requirements for doing so.  To confirm transfer of a guardianship or conservatorship to this State, the guardian or conservator in the other state would be required to petition the court to accept the guardianship or conservatorship, following procedures set forth in the bill.

      Registration of Guardianship or Conservatorship Orders

      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 order has 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.

      Amendments to Existing Statutes

      For purposes of consistency within the statutes, 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, are amended to make these sections apply only to minors.

      The committee amendments clarify various references to courts in this State (sections 2 and 3).  In addition, the committee amended the bill to clarify other terminology, which may differ in use in New Jersey as compared with the model act and other states.  Throughout the bill, certain references to a person’s “property” are changed to “estate”; the term “conservatee” is defined and added to the bill in cases where that individual would be a party to a proceeding; use of the terms “petition” and “complaint” are clarified; and the term “protective order” is amended to provide that it is not to be construed to conflict with how that term as used in other State statutes.  The committee also amended the bill to add the term “registration” to the definitions.  Clarification is made to provide for cases in which an individual has been declared incapacitated.  The committee amended the bill to remove a provision that would have provided for a $175 filing fee.  A technical amendment has been made to correct a statutory reference in section 20 of the bill.  N.J.S.3B:12-29, which concerns the appointment of a guardian of the estate for a non-resident, is repealed.