A4615 —

A4615 ASE1R Statement[First 3/8/21Reprint] ASSEMBLY AGING AND SENIOR SERVICES COMMITTEE   STATEMENT TO   ASSEMBLY, No.

4615  STATE withOF committeeNEW amendmentsJERSEY 219th LEGISLATURE   STATEINTRODUCED OFSEPTEMBER NEW14, JERSEY2020   DATED:  Sponsored by:

 MARCHAssemblywoman  8,CAROL  A.       The Assembly Aging and Senior Services Committee reports favorably and with committee amendments Assembly Bill No.

4615.MURPHY District 7 (Burlington) Assemblyman  RONALD S.

     DANCER ThisDistrict bill12 revises(Burlington, theMiddlesex, lawMonmouth pertaining to conservatorship arrangements in order to encourage ethical conduct by conservators and provideOcean) strongerAssemblywoman  protectionsVALERIE forVAINIERI conservateesHUTTLE andDistrict proposed37 conservatees. (Bergen) Specifically,  theCo-Sponsored billby: makes the following substantive changes to strengthen the existing conservatorship law:

     Assemblywomen ExistingDunn, lawGove, requiresSpeight aand courtB.DeCroce to  appoint  counsel  for  aSYNOPSIS proposed     conservateeRevises onlyand ifupdates it believes that counsel is necessary to adequately protect the conservatee’s interests.  The bill would amend the law topertaining require a conservatee or proposed conservatee to be represented by counsel throughout the course of conservatorship proceedings and, if a conservatorship is established, until such time as the conservatorship is terminated.  The bill would further require counsel to personallyencourage interviewethical theconduct conservateeby orconservators proposed conservatee not more than 72 hours before each scheduled hearing related to conservatorship and certify to theprovide courtstronger thatprotections thefor interviewconservatees hasand been performed.  If the conservatee or proposed conservateeconservatees. is, at any time, not represented by counsel and is unable to afford counsel, the court will be required to appoint counsel for the person.

       ExistingCURRENT lawVERSION requiresOF aTEXT conservatee     orAs proposedreported conservatee to be present at each hearing relating to the conservatorship unless the person is unable to attend by reason of physical or other inability established to the court’sAssembly satisfaction. Aging Ifand itSenior isServices allegedCommittee thaton theMarch conservatee8, or2021, proposedwith conservateeamendments. is unable to attend, the existing law requires the court to order an investigation unless the court believes, in its discretion, that the interests of the conservatee are adequately protected by counsel.  The bill would amend the existing law to require a court to order an investigation in any case where it is alleged that the conservatee or proposed conservatee is unable to attend the hearing in order to verify that the conservatee or proposed conservatee is, in fact, incapable of attending the hearing.  The investigation is to be ordered regardless of whether the court believes that the interests of the conservatee or the proposed conservatee are adequately represented and protected by counsel.

        ExistingAn lawAct authorizesconcerning a civil action for conservatorship toarrangements beand filedamending eithervarious bysections the proposed conservatee or by one of the followingNew individuals: Jersey 1)Statutes. the spouse of the conservatee;

2)  the     adultBe childrenIt ofEnacted by the conservateeSenate or,and ifGeneral thereAssembly areof no adult children, the personState or persons who are closest in degree of kinshipNew toJersey: the conservatee;

3)  a     public1.    agencyN.J.S.3B:13A-1 oris socialamended servicesto officialread ofas thefollows: State or county in which the conservatee resides;

4)     the3B:13A-1.  chief[a.]  administrator"Conservatee" ofmeans a Stateperson licensedwho hospital,has school,not been [adjudicated] adjudged to be incapacitated, but who, by reason of advanced age, illness, or institutionphysical ininfirmity, which[is] thehas conservateebeen isfound by a patientcourt to be unable to care for or frommanage whichproperty theor conservatee[has receivesbecome] services;to be unable to provide self-support or support for others who depend upon that support.

or     5)[b.]  any"Conservator" othermeans person having concern for the financial or personal well-being of the conservatee.  The bill would amend the law to remove the catch-all provision that allows a civilperson actionappointed to be filed by any person who has concern for the financialcourt orto personalmanage well-being of the conservatee. estate       The bill provides that every person who is entitled by law to receive notice of a conservatorshipconservatee. proceeding, including:  1) the proposed conservatee;

2)     the“Conservatorship” spousemeans andan adultarrangement, childrenordered ofby the conservateecourt, or,pursuant ifto therewhich area noconservator adultis children,authorized theto personmanage orthe personsestate closest in degree of kindshipa toconservatee. the conservatee;

and     3)“Proposed theconservatee” personmeans witha whomperson thewho conservateeis residesalleged or, if the conservateee resides in an institution, the chief administrator of that institution, are entitled to appear at all hearings and be heardunable on all matters relating to thecare conservatorship. for Existingor lawmanage authorizesproperty, suchor persons to appear at hearings and be heardunable on matters related to theprovide conservatorshipself-support onlyor ifsupport thefor courtothers approveswho ofdepend on such actionsupport, anddue deems it to beadvanced inage, theillness, interestor ofphysical theinfirmity, conservatee. but Althoughwho theis billnot wouldyet entitlesubject these persons to appear and present testimony and other evidence, it would preserve the court’s ability to use its discretion in determining the relevance and credibility of, and the weight to be given to, the testimony and evidence.        Existing law provides for a conservatorconservatorship toestablished fileby with the clerkcourt. of court, under oath, an inventory identifying and appraising all of the real and personal property that has come into the conservator’s hands or control or has come into the hands of any other person, on the conservator’s behalf;

however,(cf:  suchP.L.2013, inventoryc.103, needs.40) only  be     submitted2.    ifN.J.S.3B:13A-2 the court expressly requires such reporting.  The court is notamended currently required, by existing law, to reviewread any inventory that is filed therewith.  The bill would amend the existing law to require a conservator, in all cases, to file with the clerk of court, under oath, at time intervals ordered by the court, but not less often than every six months during the course of a conservatorship, the inventory required by existing law, as wellfollows:  as     a3B:13A-2.  formala. accounting that shows each expenditure and disbursement that has been made by the conservator from the conservatee’s estate during the reporting period.  The bill would further require the court to review the inventories and accounting statements submitted pursuant to the bill, on at least an annual basis, in order to ensure that the conservator is properly fulfilling the conservator’s duties with respect to the conservatee and is operating in a manner consistent with the conservatee’s best interests.  The bill authorizes the court, at any time, and requires the court, whenever an inventory or formal accounting indicates that the conservator may not be properly fulfilling the conservator’s duties or acting in the conservatee’s best interests, to appoint a third-party to interview the conservatee and conservator and to undertake any other investigation the court may direct.

      The TheSuperior billCourt would[may], clarifyin that a conservatorcivil willaction alsobrought be[by requiredthe toconservatee annuallyor provide,some toother theperson conservateein andhis thebehalf] court,pursuant anto informalthis reportchapter, ormay accountingappoint statementa settingconservator forthto manage the incomeestate andof othera assetsconservatee[, withinexcept thethat conservator’sif].  control     thatb.    haveA beencivil collectedaction andfor expendedconservatorship ormay otherwisebe distributedbrought either by the conservatorproposed duringconservatee theor precedingby year. another Thisperson, informalidentified reportin orN.J.S.3B:13A-5, accountingwho statementis willacting beon supplementalbehalf toof the formalproposed inventoryconservatee.  and     accountingc.     statementsIn thatany arecase toin bewhich submittedthe proposed conservatee objects to the court,imposition underof oath,a atconservatorship, leasta everyconservator sixshall monthsnot underbe theappointed. bill.

     (cf:  TheP.L.1983, billc.192, woulds.1) require  a     conservator,3.    whenN.J.S.3B:13A-3 expendingis oramended distributing funds from the conservatee’s estate, to takeread intoas accountfollows: the requirements of the “Prudent Investor Act,” P.L.1997, c.36 (C.3B:20-11.1 et seq.).  The bill also specifies that the conservator will be required to give due regard to, and to take actions that are consistent with, the ward’s best interests and the ward’s expressed wishes and preferences, to the extent that the ward is capable of expressing those wishes and preferences.

          Although3B:13A-3.  existinga.  lawA already provides that a conservator will be liable to the conservatee or otherproposed interestedconservatee parties,shall tobe therepresented sameby extentcounsel asthroughout a trustee of an express trust, whenever the exercisecourse of aconservatorship conservator’sproceedings powerand, isif improper, the bill would clarify this provision by providing a listconservatorship of examples of instances where a conservator’s exercise of power is improper. established, Specifically,until thesuch billtime provides that a conservator will be liable to the same extent as a trustee of an express trust whenever a court finds that the conservator has breached his or her fiduciary duties by taking an action that is outside the scope of the conservatorship arrangement or that violates the rights of the conservatee, contradicts or violates the conservatee’s best interests, or is otherwiseterminated. deemed by the court to be improper for a fiduciary.

          Finally,b.    Counsel shall personally interview the billconservatee amendsor proposed conservatee, as the existingcase conservatorshipmay lawbe, not more than 72 hours before each scheduled hearing related to modernizeconservatorship, and clarifyshall certify to the existingcourt languagethat andthe paragraphinterview andhas sentencebeen structureperformed.  and     ensurec.     thatIf appropriatethe languageconservatee isor usedproposed consistently,conservatee is, at any time, not represented by counsel and is presentedunable into anafford activecounsel, andthe direct[The] voice,court throughoutshall [have the law. right  to] COMMITTEEappoint AMENDMENTS:counsel [for the proposed conservatee if it believes that counsel is necessary to adequately protect the interests of the conservatee] therefor.

     (cf:  TheP.L.1983, committeec.192, amendeds.1) the  bill     to4.    takeN.J.S.3B:13A-4 effectis onamended theto 180thread dayas afterfollows: the date of enactment.  As introduced, the bill would have taken effect immediately.

     3B:13A-4.  [The] A conservatee or proposed conservatee shall be present at [the] each hearing relating to the conservatorship unless [he] the person is unable to attend by reason of physical or other inability[, and that inability is] established to the satisfaction of the court.  [If] Whenever it is alleged that the conservatee or proposed conservatee is [found to be] unable to attend a hearing related to the conservatorship, the court shall, subject to [rules of court] the Rules of Court, order an investigation to be conducted to [assure] confirm that the conservatee [does not object to the conservatorship unless] or proposed conservatee is incapable of attending the hearing.  An investigation shall be ordered and conducted, pursuant to this section, regardless of whether the court believes[, in its discretion,] that the interests of the conservatee or proposed conservatee are adequately represented and protected by counsel [representing the conservatee].

(cf:  P.L.1983, c.192, s.1)        5.    N.J.S.3B:13A-5 is amended to read as follows:

     3B:13A-5.  [By whom action for appointment of conservator in behalf of conservatee may be brought.  An] A civil action for the appointment of a conservator may be brought by the proposed conservatee, as provided in [section] N.J.S.3B:13A-2, or [in] may be brought, on the proposed conservatee's behalf, by:       a.     [His] the spouse of the proposed conservatee;

     b.    [His] the adult children of the proposed conservatee or, where there are [none] no adult children, the person or persons who are closest in degree of kinship to the proposed conservatee;

     c.     [Any person having concern for the financial or personal well-being of the conservatee;] (Deleted by amendment, P.L.    , c.    ) (pending before the Legislature as this bill)      d.    [A] a public agency or a social services official of the State or [of the] county in which the proposed conservatee resides, regardless of whether or not the proposed conservatee is a recipient of public assistance;

[or]      e.     [The] the chief administrator of a State licensed hospital, school, or institution in which the proposed conservatee is a patient or from which [he] the proposed conservatee receives services[.];

or      f.     [The] the chief administrator of a non-profit charitable institution in which the proposed conservatee is a patient or from which [he] proposed conservatee receives services.

(cf:  P.L.1989, c.329, s.1)        6.    N.J.S.3B:13A-6 is amended to read as follows:

     3B:13A-6.  Notice of the action to appoint a conservator shall be served upon the following persons:

     a.     The proposed conservatee unless he is the plaintiff;

     b.    The spouse and adult children of the proposed conservatee or, where there are [none] no adult children, [upon] the person or persons who are closest in degree of kinship to the proposed conservatee;

and      c.     The person with whom the conservatee resides[,] or, if the conservatee resides in an institution, [upon] the chief administrator of that institution.

(cf:  P.L.1983, c.192, s.1)        7.    N.J.S.3B:13A-7 is amended to read as follows:

     3B:13A-7.

The persons receiving notice pursuant to N.J.S.3B:13A-6 [may, upon approval of the court and in the interest of the conservatee,] shall be entitled to appear at all hearings and be heard [concerning] on all matters relating to the conservatorship.

When making any material determination related to the conservatorship, the court shall consider, and shall determine the relevance and credibility of, and the weight to be given to, any testimony or other evidence provided by such persons.  (cf:  P.L.1983, c.192, s.1)        8.    N.J.S.3B:13A-17 is amended to read as follows:

     3B:13A-17.  [A] a.  At time intervals ordered by the court, but not less often than every six months during the course of a conservatorship, the conservator [may, and if required by the court] shall[,] file with the clerk of the court, under oath:

     (1)   an inventory[, under oath, of] identifying and appraising all of the real and personal property [which] that has come into [his] the conservator’s hands or control or has come into the hands of any other person [for him], on the conservator’s behalf, during the reporting period, under the auspices of the established conservatorship arrangement;

and      (2)   a formal accounting showing each expenditure and disbursement that has been made by the conservator from the conservatee’s estate during the reporting period.       b.    The court shall not require an initial inventory and [appraisement] accounting statement to be filed under this section until [3] at least three months have elapsed after the grant of letters of conservatorship.

     c.     The court shall review the inventories and accounting statements submitted pursuant to this section, on at least an annual basis, to ensure that the conservator is properly fulfilling the conservator’s duties with respect to the conservatee and is operating in a manner consistent with the conservatee’s best interests.  The court may, at any time, and shall, whenever an inventory or formal accounting submitted pursuant to this section indicates that the conservator may not be properly fulfilling the conservator’s duties or acting in the conservatee’s best interests, appoint a third-party to interview the conservatee and conservator and to undertake any other investigation the court may direct.