New Jersey Governor Phil Murphy returned S2332 (Scutari)/A3893 (Murphy) to the Senate under a conditional veto to amend language that changes the burden on demonstrating capacity for minors under guardianship. The bill would allow guardianship complaints to be filed up to 180 days before a minor who will require a guardian turns 18, and establish general standards for guardianship complaints. The New Jersey State Bar Association supported the bill with amendments to clarify that the presumption of capacity attaches to the alleged incapacitated person (AIP) and the complainant has the burden to show the person is incapacitated.
“An individual is presumed to have capacity when the individual turns 18, while minors are presumed ‘incompetent,” the NJSBA said in a letter to the sponsors, citing to prevailing case law and the Rules of Professional Conduct. “The importance of this concept is that when an individual turns 18 and a person attempts to file guardianship over that individual, there becomes a necessity to demonstrate that the individual is incapacitated by clear and convincing evidence and not on the individual to prove capacity.”
The Governor returned the bill to the Senate with revisions that “would codify in statute the right to self-determination throughout the pendency of any guardianship matter and require the courts to appoint counsel for AIPs, and in the court’s discretion, a guardian ad litem.” The conditional veto further recommended that the courts permit an applicant to withdraw while allowing the matter to proceed for adjudication on the AIP’s capacity and potential guardianship, contingent on a showing of good cause and that it serves the AIP’s best interests, with notice to the AIP, interested parties and appropriate state agencies.
“I believe this procedure strikes an appropriate balance between preserving the right to self-determination and acknowledging the role of New Jersey’s courts in providing for the safety of AIPs and safeguarding their best interests,” said Governor Murphy.
Legislators lauded the bill for filling a gap in care for adult children with disabilities who were previously under guardianship, but were without one while awaiting a court hearing. The current law only allows such applications when the child turns 18. The pandemic exacerbated these concerns when court delays left many AIPs – including those with complex medical needs or requiring everyday decision-making – without a legal guardian for the period of time when the AIP turned 18 and the disposition of a complaint for guardianship, which court hearings were pending for sometimes many months, said Assemblyman Michael Inganamort, a sponsor of the bill. “The opportunity to initiate guardianship proceedings early means vulnerable children aren’t left in limbo,” said Inganamort. “This is a bipartisan solution that protects the interests of children who will always rely on a specific system of care and a loving family.”
The Governor’s changes now have to be considered by the Legislature. If the changes are passed in both houses, the bill will be sent back to the Governor for his signature. The NJSBA continues to monitor its progress. A copy of the conditional veto may be found here.