Guardianship Affidavits – Revised NJ Law

NOTE: This change applies to the appointment of a guardian for a person receiving services from the Division of Developmental Disabilities (DDD).  It does not change the requirements for guardianship of a person outside the DDD system.

I was recently asked if Nurse Practitioners (“NPs”) or Physician Assistants (“PAs”) are qualified to complete affidavits to support the guardianship of a disabled adult in New Jersey.  The short answer is YES because of recent amendments to the law, specifically the required documents to be submitted to the court when you file a petition for guardianship.

Here is the longer answer:

NJ Court Rule 4:86 governs guardianship.  The rule used to read: “Affidavits or certifications of two physicians having qualifications set  forth in N.J.S.A. 30:4-27.2t, or the affidavit or certification of one such physician and one  licensed practicing psychologist as defined in N.J.S.A. 45:14B-2, in such form as  promulgated by the Administrative Director of the Courts.”  R. 4:86-2(b)(2).  Thus, the old law for a petition for guardianship required two affidavits from either a licensed doctor or psychologist.

The statute was revised in 2015 on the issue of who constitutes a “physician”. The language was changed to:

The moving papers shall include: (1) a verified complaint; (2) an affidavit from a practicing physician or a psychologist licensed pursuant to P.L.1966, c.282 (C.45:14B-1 et seq.) who has made a personal examination of the alleged incapacitated person not more than six months prior to the filing of the verified complaint; and (3) one of the following documents: (a) an affidavit from the chief executive officer, medical director, or other officer having administrative control over the program from which the individual is receiving functional or other services provided by the Division of Developmental Disabilities; (b) an affidavit from a designee of the Division of Developmental Disabilities having personal knowledge of the functional capacity of the individual who is the subject of the guardianship action; (c) a second affidavit from a practicing physician or psychologist licensed pursuant to P.L.1966, c.282 (C.45:14B-1 et seq.); (d) a copy of the Individualized Education Program, including any medical or other reports, for the individual who is subject to the guardianship action, which shall have been prepared no more than two years prior to the filing of the verified complaint; or (e) an affidavit from a licensed care professional having personal knowledge of the functional capacity of the individual who is the subject of the guardianship action.

Thus, accompanying the petition for guardianship (complaint) must be one affidavit from a doctor or psychologist and one of the following:

  • Another affidavit from doctor or psychologist
  • An affidavit from the director of an appropriate facility
  • An affidavit from an approved person from the NJ Division of Developmental Disabilities (DDD)
  • An IEP
  • An affidavit from a “licensed care professional”

“Licensed care professional” is defined as “a duly certified or licensed advanced practice nurse, board certified assistant behavior analyst, board certified behavior analyst, clinical nurse practitioner, licensed practical nurse, family counselor, nurse, occupational therapist, physical therapist, physician assistant, professional counselor, registered nurse, social worker, or speech language pathologist.”  N.J.S.A. 30:4-165.8(2)(b).  So, that includes NPs and PAs, among other professionals.

This makes the required documentation for a guardianship petition a bit easier to obtain, although not less stringent.  But in this modern age of healthcare, NPs, PAs, counselors, RNs, social workers, and other professionals may be the people who know the disabled individual best.  That is what courts are looking for, namely, credible evidence to support the guardianship.

If you have questions about guardianships in NJ or PA, contact us via one of our websites: http://schoolkidslawyer.com or http://thurstonlawpc.com or call us at 856-335-5291.