52:27G-35 Existing agreements, void, exceptions.
4. a. An inter vivos gift, contract, conveyance, disposition, transfer, trust, change in beneficiary designation, appointment, or re-titling of an account or property, or a testamentary instrument affecting an incapacitated adult's money or property in favor of a registered professional guardian or a family member or business associate of the registered professional guardian, made or executed, as appropriate, during the two-year period before the establishment of a guardianship in which the registered professional guardian is appointed as guardian shall be void, unless the court determines that:
(1)the registered professional guardian or a family member or business associate of the registered professional guardian who benefits from the inter vivos transaction or testamentary instrument described in this subsection is a spouse, domestic partner as defined in section 3 of P.L. 2003, c.246 (C.26:8A-3) or heir at law of the incapacitated adult; or
(2)the registered professional guardian has proved by a preponderance of the evidence that the inter vivos transaction or testamentary instrument described in this subsection:
(a)was not made or executed, as appropriate, when the incapacitated adult was under the disability that caused the incapacitated adult to be subsequently declared incapacitated;
(b)was authorized and not the result of undue influence, fraud, coercion, duress, deception or misrepresentation; and
(c)was reviewed by an independent attorney, who is not associated with the registered professional guardian or a family member or business associate of the registered professional guardian, donee, contracting party, transferee, beneficiary, title holder or devisee, and that:
(i)the independent attorney counseled the incapacitated adult about the nature and consequences of the intended inter vivos transaction or testamentary instrument described in this subsection; and
(ii) the independent attorney certified that the intended inter vivos transaction or testamentary instrument described in this subsection was not the result of undue influence, fraud, coercion, duress or misrepresentation.
The provisions of this subsection shall not be construed to affect any other right or remedy that may be available to the incapacitated adult or the estate of the incapacitated adult with respect to an inter vivos transaction or testamentary instrument described in this subsection that benefits a registered professional guardian or a family member or business associate of the registered professional guardian.
The provisions of this subsection shall not be construed to invalidate a subsequent transfer for value to a bona fide transferee from a registered professional guardian or a family member or business associate of the registered professional guardian.
b.A registered professional guardian, unless authorized by a court order after notice to all interested persons, shall not:
(1)loan an incapacitated adult's property or funds to himself or an affiliate;
(2)make, revoke or change an incapacitated adult's beneficiary designation to himself or an affiliate;
(3)purchase or participate in the purchase of property from an incapacitated adult's estate for the professional guardian's own or an affiliate's account or benefit;
(4)transfer an incapacitated adult's property or funds by inter vivos transaction to himself or an affiliate, or receive by operation of survivorship rights any of an incapacitated adult's property or funds for himself or an affiliate;
(5)engage in any transaction involving self-dealing or a conflict of interest concerning an incapacitated adult's property or funds; or(6) make any renovation to the ward's real property in an amount greater than $10,000, except that in extraordinary circumstances involving a catastrophic situation, the guardian may apply ex parte to the Superior Court for an order permitting the renovation.
L.2005,c.370,s.4.
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Last modified: October 11, 2016