REVISIONS TO THE GUARDIAN BACKGROUND

SCREENING RULES IN NEW JERSEY

In May of 2021, the Supreme Court of New Jersey enacted amendments to Rules 4:86-2 (Complaint; Accompanying Documents; Alternate Affidavits or Certifications), 4:86-4 (Order for Hearing), and 4:86-6 (Hearing; Judgment), to provide for background screening of certain proposed guardians for incapacitated persons (the “Screening Policy”). The purpose of these amendments was to provide additional protections to incapacitated persons against potential risks of abuse, neglect and financial exploitation by court appointed guardians that have oversight of the incapacitated person’s personal care and financial affairs. Now, after two (2) years in effect, the Supreme Court of New Jersey has approved revisions to the Screening Policy and has amended Rule 4:86(2)(b)(3), effective May 1, 2023.

The new Screening Policy consists of the following six (6) steps:

1. Filing of the Certification of Criminal and Civil Judgment History (discussed further below).
2. Fingerprinting and Criminal History Check. The fingerprint check may be conducted in the county of venue (or in any other New Jersey county if travel or other factors make fingerprinting in the county of venue prohibitive). The fingerprint check should be conducted within sixty (60) days of the filing of the Verified Complaint. If the fingerprint check is not completed within sixty (60) days, the proposed guardian will be automatically disqualified unless there are exigent circumstances. If the proposed guardian resides outside of New Jersey, a Computerized Criminal History check will be used as a screening tool. The Judiciary may not share the results of an individual’s fingerprint report with that individual. Once the Probate Judge makes a decision, all copies and original fingerprint results must be shredded immediately by the vicinage Human Resources Division Manager.  
3. All proposed guardians subject to the Screening Policy will also be screened using the Judiciary Systems Check and Certified Judgment Search.
4. The Probate Judge will then review the screening results and determine whether they contain relevant adverse or negative history. A proposed guardian whose appointment may be precluded based on the results of the criminal background check or screening will be provided notice and an opportunity to be heard on the record as to why the results would not aversely affect the proposed guardian’s ability to serve as guardian in the best interest of the alleged incapacitated person.
5. Before the entry of the Judgement of Incapacity and Appointment of Guardian, the appointed guardian must execute an acknowledgement of compliance with the Screening Policy. During the qualification process, the appointed guardian must sign the Acceptance of Guardianship and Acknowledgement of Guardian Background Screening and Training.
6. Upon appointment, if the guardian is ordered to file periodic reports required under N.J.S.A. 3B:12-42, the guardian has an ongoing duty to comply with the Screening Policy and to disclose any changes to criminal or civil judgment history.

Further details regarding the revisions and amendment consist of the following:

1. The Certification of Criminal and Civil Judgment History form that must be filed with the Verified Complaint if there is a known proposed guardian, has been revised. The Certification may be supplemented at any time up until the qualification and acceptance of appointment by the proposed guardian. If there is no proposed guardian at the time the Verified Complaint is filed, the Certification must be filed no later than prior to entry of Judgment of Incapacity and Appointment of Guardian. Expunged criminal records shall not be disclosed in the Certification. Proposed guardians who are subject to the Screening Policy will receive a copy of the Screening Policy and must acknowledge receipt within five (5) business days of receipt.
2. The Order Fixing Guardianship Hearing Date and Appointing Attorney for Alleged Incapacitated Person that must be filed with the Verified Complaint has been revised.
3. Additional individuals exempt from the Screening Policy now include people appointed by the court as guardian when the incapacitated person was a minor and attorneys appointed in their professional capacity. Notwithstanding this, the court may still require a proposed guardian to undergo the Screening Policy based on the facts of the case, including but not limited to the value of the guardianship estate.
4. Any proposed guardian that is exempt from the Screening Policy because he or she was appointed as legal guardian of an alleged incapacitated person prior to their reaching majority pursuant to an order of the Family Division of Superior Court, is a parent of the alleged incapacitated person, or is married to the alleged incapacitated person, is in a civil union with the alleged incapacitated person or is in a domestic relationship with the alleged incapacitated person must still file an affidavit or certification setting forth the proposed guardian’s criminal and civil judgment history for the prior ten (10) years.
5. Special medical guardianships are not within the scope of the Screening Policy.

For a discussion of the original May 2021 amendments, please see our June 2021 newsletter “New Guardian Background Screening Rules in New Jersey.” For a copy of the new forms, please click here. We at Pashman Stein Walder Hayden, P.C., have assisted many families in guardianship matters. If you need assistance with your loved one’s guardianship petition, please contact us.