Bill Text: NJ A3958 | 2020-2021 | Regular Session | Introduced
Bill Title: "The Peter Falk Act"; establishes certain requirements concerning access to persons subject to order of guardianship.
Spectrum: Bipartisan Bill
Status: (Failed) 2020-08-24 - Withdrawn from Consideration [A3958 Detail]
Download: New_Jersey-2020-A3958-Introduced.html
Sponsored by:
Assemblywoman CAROL A. MURPHY
District 7 (Burlington)
SYNOPSIS
"The Peter Falk Act"; establishes certain requirements concerning access to persons subject to order of guardianship.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning guardianship arrangements and supplementing chapter 12 of Title 3B of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. a. Unless specifically authorized by court order, a guardian shall not restrict a ward's right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, and personal mail. If a ward is unable to express consent to communication, visitation, or interaction with a person because of the ward's physical or mental condition, the ward's consent may be presumed based on a prior relationship between the ward and the person.
b. (1) A guardian may petition the court to place restrictions on any person's ability to communicate, visit, or interact with a ward. The court may grant the petition upon finding good cause exists to impose the restrictions, including, but not be limited to:
(a) the existence of a protective order issued to protect the ward from the person seeking access to the ward;
(b) a finding by a court or other State agency that the person seeking access to the ward abused, neglected, or financially exploited the ward; or
(c) the ward's express desire to reject communication, visitation, or interaction with the person.
(2) In considering a petition filed pursuant to paragraph (1) of this subsection, the court shall consider whether the ward has expressed a preference for communication, visitation, or interaction with the person. If the ward is unable to communicate, the court may consider the prior relationship history between the ward and the person and any documentation of the ward's preferences, including, but not limited to, any preferences expressed in a living will, durable power of attorney, or advance directive.
(3) An order granted pursuant to this subsection may:
(a) impose reasonable time, manner, or place restrictions on communication, visitation, or interaction with the ward;
(b) include a requirement that communication, visitation, or interaction be supervised by a third party specified by the court; or
(c) prohibit communication, visitation, or interaction with the ward.
Unless the court finds that the person poses a threat to the ward, supervised communication, visitation, or interaction shall be ordered prior to the denial of any communication, visitation, or interaction.
c. (1) If any interested person, including the ward, reasonably believes that a violation of subsection a. of this section or an order issued pursuant to subsection b. of this section has occurred, the person may petition the court to:
(a) require the guardian to grant a person access to the ward;
(b) restrict, or further restrict, a person's access to the ward;
(c) modify the guardian's duties; or
(d) remove and replace the guardian.
(2) Notwithstanding paragraph (1) of this subsection, if the court finds the ward's guardian knowingly isolated the ward, violated subsection a. of this section, or violated an order issued pursuant to subsection b. of this section, the court shall remove and replace the guardian and may order any other appropriate relief.
d. (1) Except as provided in paragraph (2) of this subsection, the court shall schedule a hearing on a petition filed pursuant to subsections b. or c. of this section no later than 60 days after the date the petition is filed. The court may, in its discretion, order mediation to be conducted by the parties and the ward prior to the hearing. If mediation results in an agreement concerning communication, visitation, or interaction, the agreement shall not be valid unless approved and memorialized in a court order.
(2) If the petition states that the ward's health is in significant decline or that the ward's death may be imminent, the court shall conduct an emergency hearing as soon as practicable, but no later than 10 days after the petition is filed. When a scheduling order is issued upon a petition filed under this paragraph, the court shall order that supervised communication, visitation, or interaction with the ward be granted during the period prior to the hearing.
(3) Notice of the hearing, a copy of the petition, and a copy of any order issued pursuant to paragraph (2) of this subsection shall be personally served upon the ward and any person against whom the petition is filed. Nothing in this paragraph shall affect the ward's right to appear and be heard in the proceedings.
e. The court may, in its discretion, award the prevailing party in any action brought under subsections b. or c. of this section court costs and reasonable attorney's fees. An award of court costs or attorney's fees shall not be paid out of the ward's estate.
2. a. A guardian shall promptly notify a ward's parents, adult children, and any other person designated by the ward to receive notice in the event that:
(1) the ward's residence has changed;
(2) the ward is staying at a location other than the ward's residence for more than seven consecutive days;
(3) the ward is admitted to a medical facility for acute care for a period of three or more days, or for emergency care in response to a life-threatening injury or medical condition; or
(4) the ward dies.
Notice of the ward's death shall be made in person or by telephone, and shall include details concerning funeral arrangements and the place of burial or other final disposition.
b. Notice provided pursuant to subsection a. of this section shall include appropriate contact information for the ward, except that no contact information shall be provided if, at the time notice is provided, there is a protective order in place which was issued on behalf of the ward against the person receiving the notice.
c. A guardian shall not be required to provide notice pursuant to this section if:
(1) a person who is entitled to notice under subsection a. of this section informs the guardian, in writing, that the person does not wish to receive such notice; or
(2) the guardian has been expressly prohibited from providing notice to the person by the ward or by a court order.
3. This act shall take effect immediately and shall apply to a guardianship created before, on, or after the date of enactment.
STATEMENT
This bill, which will be known as "The Peter Falk Act," establishes certain requirements concerning access to a person who is the subject of an order of guardianship, also known as a "ward."
Specifically, the bill provides that a guardian may not restrict a ward's right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, and personal mail, unless specifically authorized by a court order. If a ward is unable to express consent to communication, visitation, or interaction with a given person, the ward's consent may be presumed based on the ward's prior relationship with the person.
A guardian may petition the court to restrict any person's access to a ward, including requiring time, manner, or place restrictions; imposing supervised access; or prohibiting communication, visitation, or interaction with the ward. The court may grant the petition upon finding good cause exists to impose restrictions, including, but not be limited to: the existence of a protective order on the ward's behalf against the person seeking access; a finding by a court or other State agency that the person seeking access abused, neglected, or financially exploited the ward; or the ward's express desire to reject communication, visitation, or interaction with the person. Unless the court finds that the person seeking access poses a threat to the ward, supervised communication, visitation, or interaction is to be ordered prior to a denial of communication, visitation, or interaction. In considering the petition, the court will be required to consider whether the ward has expressed a preference for communication, visitation, or interaction with the person. If the ward is unable to communicate, the court may consider the prior relationship history between the ward and the person and any documentation of the ward's preferences.
Additionally, if any interested person, including the ward, reasonably believes that a guardian has impermissibly restricted communication, visitation, or interaction with the ward, or that any person has violated a court order restricting communication, visitation, or interaction, the person may petition the court for appropriate relief, including requiring the guardian to grant access to the ward; restricting a person's access to the ward; modifying the guardian's duties; or removing and replacing the guardian. In any case, if the court finds the guardian knowingly isolated the ward, restricted access to the ward, or violated a court order restricting access to the ward, the court will be required to remove and replace the guardian, and will be permitted to order any other appropriate relief.
The bill requires that a hearing on a petition filed under the bill be scheduled no later than 60 days after the date of filing; except that, if the ward's health is in significant decline or the ward's death is imminent, the court will be required to schedule an emergency hearing no later than 10 days after the petition is filed. In the case of an emergency petition, the court will be required to issue an order granting supervised access to the ward during the period prior to the hearing. In the case of a non-emergent petition, the court may order the parties to undergo mediation; however, any mediation agreement the parties reach will require court approval to take effect.
On any petition filed under the bill, the court will be permitted to award the prevailing party court costs and reasonable attorney's fees, which may not be paid out of the ward's estate.
The bill additionally requires guardians to promptly notify a ward's parents, adult children, and any other person designated by the ward to receive notice in the event that: (1) the ward's residence has changed; (2) the ward is staying at a location other than the ward's residence for more than seven consecutive days; (3) the ward is admitted to a medical facility for acute care for a period of three or more days or for emergency care in response to a life-threatening injury or medical condition; or (4) the ward dies. Unless the ward has a protective order in place against the person receiving notice, the guardian is to include appropriate contact information for the ward. Notice of the ward's death is to be made in person or by telephone and is to include details concerning funeral arrangements and the place of burial or other final disposition. A guardian will not be required to provide notice if the guardian has been expressly prohibited from providing notice to the person by the ward or by a court order, or if the person entitled to notice requests, in writing, not to receive notice.
The bill would apply to any guardianship order issued before, on, or after its effective date.
This bill is similar to laws recently enacted in Texas and Iowa and legislation introduced in Tennessee.
