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The Supreme Court has approved a Background Screening Policy for Proposed Guardians of Incapacitated Adults (the “policy”). This directive promulgates that new policy and related new and revised court forms. It also provides guidance for use of the new policy, which will apply to guardians in matters filed on or after May 15, 2021.

Summary

The policy (Attachment 1) is intended to further safeguard the vulnerable population of incapacitated adults against risks of potential abuse, neglect, and financial exploitation by guardians appointed by the court to make decisions related to their care and financial affairs. Certain proposed guardians will be subject to a check of Judiciary systems, a fingerprint or computerized criminal history check, and, at the discretion of the Probate Part judge, a certified judgment (Charles Jones) search. Proposed guardians also will be required to self-disclose and certify to any criminal and civil judgment history, acknowledge receipt of and compliance with the policy, and provide periodic reports to the court of any changes to their criminal and civil judgment history. Individuals with any relevant negative history will be provided with notice and an opportunity to be heard by the court as to whether the information discovered would affect the individual’s ability to perform the duties of a guardian.

The policy presumptively exempts certain categories of proposed guardians from the background screening process. However, the court may require any proposed guardian to undergo background screening as a prerequisite to appointment based on the individual facts of the case, including but not limited to the value of the guardianship estate.

Rule Amendments and New and Revised Forms:

To implement the approved policy, the Supreme Court amended Rule 4:86-2 (“Complaint; Accompanying Documents; Alternative Affidavits or Certifications”); Rule 4:86-4 (“Order for Hearing”); and Rule 4:86-6 (“Hearing; Judgment”).

Consistent with the policy, a new Certification of Criminal and Civil Judgment History (CN 12706) (Attachment 2) will be introduced. The following existing court forms also will be revised: Order Fixing Guardianship Hearing Date and Appointing Attorney for Alleged Incapacitated Person (CN 12013) (Attachment 3); Judgment of Incapacity and Appointment of Guardian of the Person and Estate (CN 11802) (Attachment 4); Judgment of Incapacity and Appointment of Guardian of the Person (CN 11988) (Attachment 5); Acceptance of Guardianship and Acknowledgment of Guardian Background Screening and Training (Attachment 6); and Report of Guardian Cover Page (CN 11797) (Attachment 7).

Screening Policy Process:

The screening process involves six steps, as summarized below and detailed in the attached policy:

1. Certification of Criminal and Civil Judgment History
   1. When a guardianship complaint is filed, the proposed guardian will file a Certification of Criminal and Civil Judgment History (Attachment 2). If no proposed guardian is identified at the time of filing of the complaint, the certification must be filed as soon as a proposed guardian is identified, or before entry of the Judgment of Incapacity and Appointment of Guardian.
   2. The certification may be supplemented up to the time of qualification and acceptance of appointment.
   3. Proposed guardians who are subject to the policy will receive a copy of the policy with the Order for Hearing and must acknowledge receipt. (See Step 5, below.)
2. Fingerprinting and Criminal History Check
   1. When the Order for Hearing (Attachment 3) is entered, court staff will coordinate with County Sheriff’s departments to perform fingerprint checks of proposed guardians who are New Jersey residents.
   2. Proposed guardians residing out of state will undergo a Computerized Criminal History (CCH) check.
   3. The fingerprint or CCH check results may be confidentially shared with the Probate Part judge, the County Surrogate and/or their designees, as well as with counsel for the alleged incapacitated person.
3. Judiciary Systems Check and Certified Judgment (Charles Jones) Search
   1. Proposed guardians also will be screened by searching certain Judiciary systems.
   2. The Probate Part judge also has discretion to require a Charles Jones search based on the value of the guardianship estate.
   3. The results of the Judiciary systems searches and Charles Jones search, if applicable, may be confidentially shared with the Probate Part judge, the County Surrogate and/or their designees, as well as with counsel for the alleged incapacitated person.
4. After receipt of the screening results, the Probate Part judge will review the information to determine whether it contains any relevant adverse or negative history.
   1. The policy sets forth nine factors to be evaluated by the Probate Part judge in determining whether the proposed guardian’s relevant screening results may adversely relate to their ability to perform the duties and responsibilities of guardianship.
   2. Proposed guardians whose relevant negative history may preclude them from appointment will be entitled to notice and an opportunity to be heard on the record as to why the check results would not adversely impact their ability to perform the duties and responsibilities of guardianship.
   3. Fingerprint and Judiciary systems search results will be destroyed
5. No later than the time of entry of the Judgment of Incapacity and Appointment of Guardian (Attachment 4 or 5), the appointed guardian must execute an acknowledgment of compliance with the policy. At qualification, the appointed guardian must sign the Acceptance of Guardianship and Acknowledgment of Guardian Background Screening and Training (Attachment 6).
6. The appointed guardian has an ongoing duty to comply with the policy and to disclose any changes to criminal or civil judgment history in periodic reports required pursuant to N.J.S.A. 3B:12-42. (Attachment 7).

Any questions related to this directive or the attached policy, amended rules, or new and revised forms should be directed to the Civil Practice Division at (609) 815- 2900 ext. 54900 or [email protected].

***List of Attachments in Provided Link Below:

1. Background Screening Policy for Proposed Guardians of Incapacitated Adults
2. New form Certification of Criminal and Civil Judgment History (CN 12706)
3. Revised form Order Fixing Guardianship Hearing Date and Appointing Attorney for Alleged Incapacitated Person (CN 12013)
4. Revised form Judgment of Incapacity and Appointment of Guardian of the Person and Estate (CN 11802)
5. Revised form Judgment of Incapacity and Appointment of Guardian of the Person (CN 11988)
6. Revised form Acceptance of Guardianship and Acknowledgment of Guardian Background Screening and Training
7. Revised form Report of Guardian Cover Page (CN 11797)

Directive 11-21 – Guardianships of Incapacitated Adults – Background Screening Policy for Proposed Guardians – As Signed – 04-29-21.pdf