A guardianship action is a court case that is filed to ask a Judge to appoint a Guardian for an incapacitated adult. The court rules are specific about all of the procedures that must be followed when filing this kind of case. It is filed by an interested party in the Superior Court of the County where the alleged incapacitated person resides. Usually, the person who wants to be the Guardian is a child, or spouse, or parent of the alleged incapacitated person. Sometimes a health care facility will file the action and ask for a suitable person to be appointed. Previously, the past life and private affairs of the potential guardian were just that …. private. Not any longer.
The Administrative Office of the Courts has just issued Directive #11-21, effective May 15, 2021, called the Background Screening Policy for Proposed Guardians. The policy applies to all potential Guardians except for spouses; parents; temporary guardians; or financial institutions, agencies, attorneys, or governmental offices who serve as guardians.
The new policy requires the proposed Guardian, or the newly appointed Guardian, to file a Certification of Criminal and Civil Judgment History concerning the entire lifetime of the proposed Guardian. The Surrogate’s Court will conduct a criminal background check and coordinate fingerprint checks through the County Sheriff’s Department or through the Computerized Criminal History (CCH) system for individuals who reside out of State. The Judge who reviews the pleadings and Certification has the discretion to order a “Charles Jones search” of the individual’s background. This is a search that would reveal bankruptcies, lawsuits, judgments obtained against the individual, unpaid child support, and more. The Judge will also have the authority to order such searches for an otherwise exempt individual.
These prior events do not per se disqualify a person from being appointed as Guardian. Apparently, the information will be considered by the Judge when making a determination about the character and fitness of the proposed Guardian. Among the factors a Judge can consider are the nature and seriousness of the offense, how long ago it occurred, whether it was an isolated event or part of a pattern, and whether the incident in question is relevant to the responsibilities of a Guardian.
The appointed Guardian will have an obligation to update the Certification when they file the required asset inventory 90 days after appointment, and on an ongoing basis if there are any changes.
These new requirements will no doubt create challenges for certain potential guardians. We are ready to assist and advocate for clients with Guardianship actions that comply with all the new procedures. Call for an appointment ……….. 732-382-6070