Separated in New Jersey? Your Spouse May Still Inherit Everything

Separated in New Jersey? Your Spouse May Still Inherit Everything

by | Jun 30, 2026 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate

A New Jersey appellate decision decided June 29, 2026 — In the Matter of the Estate of Agnieshka Burke — offers a stark illustration of what can happen when someone dies while a divorce is still pending. The case involves a $500,000 life insurance policy, a Will that named the estranged husband as executor and sole beneficiary, and a fight between that husband and the decedent's sister over who gets what. The court's ruling touches on three issues that matter to anyone who is separated, going through a divorce, or simply has not updated their estate plan in years: whether your Will still works the way you intended, who controls your estate when you die, and what happens to assets like life insurance that pass outside your Will entirely.

Dying With a Divorce Pending

Under New Jersey law, a divorce action ordinarily ends when a final judgment of divorce is entered. If one spouse dies before that happens, the divorce proceedings have traditionally abated — meaning they simply stop. The surviving spouse inherits under the Will or under the intestacy laws if there is no Will, and the court's power to divide marital property (called equitable distribution) disappears.

The Legislature changed this rule in January 2024 by adding subsection (h)(2) to the equitable distribution statute, N.J.S.A. 2A:34-23. The new provision states that if a divorce complaint has been filed and either party dies before a final judgment is entered, the court's authority to divide marital property does not abate. In Burke, the Appellate Division confirmed that this right belongs not just to a surviving spouse, but also to the estate of the spouse who died. In plain terms, if you file for divorce and then die before it is finished, your estate (acting through a personal representative) may still be able to pursue a share of the marital assets.

This is a significant development for anyone with a pending divorce. It means that death during divorce proceedings does not necessarily resolve the property dispute. It may simply transfer the fight to a different courtroom.

Your Executor May Have a Conflict of Interest

In Burke, Agnieshka had named her husband Jared as executor of her Will. After she died with the divorce still pending, Jared was appointed executor and also stood as the primary beneficiary under both her Will and life insurance policy. The court found this created an irreconcilable conflict of interest. As the Appellate Division put it, Jared's responsibilities to represent the estate's interests and his own personal interests were "directly adverse."

The court did not remove Jared as executor entirely, but it disqualified him from acting as executor in connection with the equitable distribution dispute — the exact proceeding where the estate's most valuable rights were at stake. It then ordered the Probate Part to appoint a substitute executor for that limited purpose, and noted that Agnieshka's Will had already named her sister as successor executor.

The lesson here is direct. If you are separated or in the middle of a divorce, your spouse is most likely still named in your Will as executor, beneficiary, or both. Unless your Will is updated or the divorce is finalized, that person retains legal authority over your estate when you die. New Jersey law does automatically revoke certain transfers to a former spouse after a divorce is complete under N.J.S.A. 3B:3-14, but that protection does not kick in until the divorce is actually finalized. Separation alone changes nothing.

Non-Probate Assets Are a Separate Problem

Most people assume their Will controls everything they own. It does not. Assets that pass by beneficiary designation — life insurance, retirement accounts, payable-on-death bank accounts — transfer directly to the named beneficiary regardless of what the Will says. These are called non-probate assets, and they pass outside of probate entirely.

In Burke, Agnieshka's $500,000 life insurance policy named Jared as the sole beneficiary. The couple was separated and a divorce was pending, but she had not changed the designation. The Appellate Division sent the question of who is entitled to those proceeds to the Family court for resolution, but it was careful to note that Jared remains the named beneficiary and that no settlement agreement or final divorce judgment existed that would automatically revoke that designation under N.J.S.A. 3B:3-14.

This is where many people are caught off guard. You can update your Will, but if you forget to change the beneficiary on your life insurance policy or your 401(k), those assets still pass directly to your estranged spouse. The only way to ensure your beneficiary designations reflect your current intentions is to change them directly with the insurance company, bank, or plan administrator — a Will cannot override them.

What You Should Do Now

If you are separated or going through a divorce, your estate plan needs immediate attention on several fronts. First, after consulting your divorce attorney, review and update your Will to name a new executor and new beneficiaries. Second, also after consulting your divorce attorney, change beneficiary designations on every account that carries one — life insurance, IRAs, 401(k)s, annuities, payable-on-death accounts. Third, review any powers of attorney and health care proxies that name your spouse as your agent. In New Jersey, the divorce statute does not automatically revoke a health care proxy naming a spouse, so your estranged husband or wife may still have the legal authority to make medical decisions for you if you become incapacitated. For more on how that works, see who makes medical decisions in New Jersey.

There are also Medicaid planning considerations that arise when a couple separates but does not yet divorce — particularly for couples where one spouse may need long-term care. Medicaid's spousal protection rules treat legally married couples as a unit for purposes of resource assessment, which can affect eligibility and planning options. For more on that issue, see Medicaid and divorce in New Jersey.

The Burke case is a reminder that separation is not a legal status that protects you or your estate. Until a divorce is final, your spouse remains your legal spouse for virtually every purpose that matters in estate planning. If your circumstances have changed, your documents need to change with them.

New Jersey Supreme Court Rejects Shaken Baby Syndrome Testimony as Unreliable Science

New Jersey Supreme Court Rejects Shaken Baby Syndrome Testimony as Unreliable Science

by | Jun 23, 2026 | Legal Bulletin, NJ Supreme Court

On November 20, 2025, the New Jersey Supreme Court issued one of the most significant evidentiary rulings in the state’s criminal law in years. In State v. Nieves, the Court held that expert testimony diagnosing Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT) — specifically, the theory that shaking an infant without any impact to the head can cause a recognized cluster of injuries — is not reliable enough to be presented to a jury. The decision affirmed rulings by two trial courts and the Appellate Division, and it represents a rare and important judicial reckoning with what has long been treated as settled medical fact in the courtroom.

This post explains what the Court decided, why it matters, and what it says about the broader problem of unreliable science being presented as certainty in the courtroom.

The Two Cases

The decision consolidated two prosecutions involving similar facts. In the first, Darryl Nieves was the primary caregiver of an infant, D.J., who had a complicated medical history including premature birth and cardiac surgery. At eleven months old, D.J. experienced three episodes of seizure-like symptoms over two weeks, each occurring while Nieves was caring for him. D.J. was found to have bilateral retinal hemorrhages and bilateral subdural bleeding. A child abuse pediatrician reviewed his history, found no other explanation, and diagnosed SBS/AHT “within a reasonable degree of medical certainty.” Nieves was indicted on aggravated assault and child endangerment charges. A second defendant, Michael Cifelli, faced a similar diagnosis from the same physician under similar circumstances.

Both men challenged the admissibility of the State’s SBS/AHT testimony before trial, arguing the underlying science was not reliable enough to meet New Jersey’s evidentiary standard.

How New Jersey Tests Reliability

Under New Jersey Rule of Evidence 702, expert testimony is admissible only if the field of inquiry is developed enough that an expert’s opinion can be considered reliable. New Jersey applied the “Frye standard” for these cases, which asks whether the underlying science has gained general acceptance in the relevant scientific field — and courts can identify more than one relevant field, with general acceptance required in each. This matters enormously here: the SBS/AHT diagnosis is delivered by pediatricians, but its scientific foundation traces back to biomechanics, the engineering discipline that studies how physical forces affect the human body — the same field behind crash-test research used in vehicle safety design.

Tracing SBS/AHT Back to Its Scientific Roots

The Court’s opinion traces the diagnosis back to its scientific roots, and that history matters. In 1968, a neurosurgeon studying whiplash injuries from car accidents concluded that brain injury could result from rotational forces on the head and neck alone, without direct impact — research that had nothing to do with infants or shaking. Other researchers later relied on that study to hypothesize that a shaken infant could suffer similar injuries, and through a series of papers in the early 1970s, the theory of infant “whiplash-shaking” began to spread through the medical community.

In 1987, the first biomechanical study actually designed to test the shaking hypothesis using infant models was published — and it concluded that shaking alone does not produce the injuries associated with SBS/AHT. In 2002, the original whiplash researcher published a paper criticizing the way his own work had been used to support the theory. A decade later, the neurosurgeon who first proposed the shaking hypothesis questioned it as well. In other words, the diagnosis used for decades to support convictions was built on biomechanical assumptions that the biomechanical community itself never fully validated, and that some of the theory’s own originators eventually disavowed.

Why the State Lost

At the Frye hearing in Nieves, the State called a single expert, a child abuse pediatrician, who testified that shaking alone could produce the recognized triad of symptoms. The defense countered with biomechanical engineers who testified that no scientific testing has ever established that a human being can generate the physical force necessary to cause those injuries through shaking alone. The trial court found this decisive, noting that the few studies attempting to establish a force threshold relied on monkeys, wooden dolls, or other mechanical stand-ins for an infant’s body — models that cannot reliably substitute for human anatomy. No study has ever measured what shaking a real infant actually produces in force, because no such study could ethically be performed.

The Supreme Court agreed, and its reasoning turned on a critical concession by the State itself. In supplemental briefing, the State acknowledged that disagreement exists among biomechanical engineers generally regarding whether shaking alone can cause abusive head trauma. The Court treated that admission as significant evidence, on its own, that the biomechanical community has not reached general acceptance on the question — and emphasized that biomechanics is not peripheral, but the very field from which the SBS/AHT theory originated. The Court acknowledged general acceptance within much of the medical and pediatric community, but held that was not enough. The State did not meet its burden because biomechanics is also a relevant scientific community and general acceptance was lacking there.

What the Decision Does Not Do

The ruling is narrower than it may sound. The Court did not hold that abuse involving head trauma is unprovable, and did not bar physical evidence of abuse from reaching a jury. Where there is independent evidence — bruising, fractures, an admission, or any other physical indicator of impact or injury — the State remains free to present it. What the Court excluded is expert testimony asserting, as a matter of medical certainty, that the symptoms alone prove the child was shaken without any impact, when the underlying biomechanical science does not support that conclusion. The Court also left the door open for the future: New Jersey adopted a Daubert-based reliability standard for some expert testimony in 2023, and the Court noted that if new, reliable scientific evidence develops, the State could attempt to establish SBS/AHT’s reliability under that standard in a later case. This is not a permanent ban — it is a determination that, on this record, the science was not there yet.

The decision was also not unanimous. One justice dissented, arguing that SBS/AHT is endorsed by every major medical association involved in its diagnosis and treatment, that every other state to consider the question has allowed the testimony, and that the majority let a handful of biomechanical engineers override the broader medical consensus. The majority’s response was that the State’s own concession of disagreement among biomechanical engineers, combined with that field’s direct relevance to the theory’s scientific foundation, was enough on its own to defeat a claim of general acceptance — regardless of how many medical organizations had endorsed the diagnosis.

Why This Case Matters Beyond These Two Defendants

SBS/AHT prosecutions are not rare. For decades, a diagnosis delivered with confidence by a pediatric specialist has been sufficient, in courtrooms across the country, to support a conviction — even when the medical diagnosis itself was the only evidence of abuse. New Jersey’s highest court has now said, in a published and precedential decision, that this practice rests on a scientific foundation that has not been adequately tested, and that the field most directly responsible for that foundation has not reached consensus on its core premise.

This is what happens when a court takes seriously its role as a gatekeeper against unreliable expert evidence. Science adapted specifically to answer a legal question — rather than developed independently and later applied to one — deserves exactly this kind of scrutiny. The history traced in this opinion shows a theory that migrated from automobile whiplash research into infant medicine, gained momentum through repetition and institutional endorsement, and was never tested against the basic question of whether shaking an infant can actually generate the force the theory requires. That is not how reliable science works, and it is not how evidence that can take away someone’s liberty should reach a jury.

For families and defendants facing an SBS/AHT allegation in New Jersey, this decision is significant. It does not mean such a charge can never be proven — independent physical evidence of abuse remains fully admissible. But the diagnosis alone, offered as medical certainty that shaking without impact occurred, can no longer reach a New Jersey jury without first surviving the scrutiny this opinion demands.

When a Spouse Won’t Cooperate: The Medicaid Spousal Waiver in New Jersey

When a Spouse Won’t Cooperate: The Medicaid Spousal Waiver in New Jersey

by | Jun 16, 2026 | Medicaid, Medicaid Planning

Applying for Medicaid to cover nursing home care requires disclosing financial information not just for the applicant, but for the applicant’s spouse as well. That requirement makes sense when both spouses are willing to participate. It becomes a serious problem when the spouse living at home — known in Medicaid terms as the “community spouse” — refuses to provide that information, or simply cannot.

A New Jersey appellate decision illustrates exactly how this problem plays out, and what an applicant can do about it.

The Two Spouses in a Medicaid Application

When one spouse needs nursing home care and applies for Medicaid, that spouse is the “institutionalized spouse.” The spouse remaining at home is the “community spouse.” Federal and New Jersey Medicaid rules require the agency to assess both spouses’ combined resources, even though only one spouse is applying for benefits. This is meant to prevent asset-shifting between spouses, but it also means the community spouse’s bank records, income, and other financial information become part of the application.

Most of the time, both spouses cooperate and the process moves forward. But what happens when the community spouse won’t provide that information — whether out of refusal, illness, age, or simply being overwhelmed?

The Spousal Waiver and Spousal Refusal

Federal Medicaid law, 42 U.S.C. § 1396r-5, addresses this exact scenario in two related ways. The first is spousal refusal. Under the statute, if a community spouse refuses to make their income or resources available to the institutionalized spouse, the institutionalized spouse can still be found eligible, provided the institutionalized spouse assigns to the state any right of support from the community spouse. In other words, the applicant transfers to the state whatever legal right they would otherwise have to seek support from their spouse, and the state can then pursue the community spouse directly for reimbursement of the cost of care. The eligibility determination itself proceeds without counting the community spouse’s resources.

Second, and separately, the statute allows the state to waive its resource assessment when denying eligibility would otherwise impose an “undue hardship” on the institutionalized spouse. This is the provision New Jersey’s Division of Medical Assistance and Health Services (DMAHS) has applied in practice when a community spouse is uncooperative, but DMAHS has historically construed this waiver narrowly — generally limiting it to cases involving a documented break in the marriage, an unverifiable death or divorce, or a community spouse whose whereabouts are unknown.

That narrow approach was tested directly in N.S. v. Division of Medical Assistance and Health Services, an unpublished Appellate Division decision from 2019.

What Happened in N.S.

N.S. was an 87-year-old man admitted to a nursing facility. Before his admission, he had lived with his wife, who was 86. His daughter, acting as his authorized representative, applied for Medicaid on his behalf and began the lengthy process of gathering financial documentation — a process that dragged on for months as the county welfare agency made repeated, sometimes inconsistent, requests for records.

The daughter ran into a wall when it came to her stepmother’s financial information. The wife was elderly, in poor health, and became distressed every time she was asked for documents. She told her stepdaughter to stop asking. The nursing facility sent her three separate letters requesting the information; she did not respond to any of them. The county agency sent three more letters directly. Still no response.

The nursing facility’s attorney requested a spousal waiver, arguing that denying benefits because of the wife’s refusal to cooperate would work an undue hardship on N.S. The county agency disagreed, reasoning that because the couple had been living together and there was no evidence of a broken marriage, the waiver did not apply. N.S.’s application was denied. Both spouses died within months of each other — the wife in October 2016, N.S. in November 2016 — before the matter was resolved.

An administrative law judge upheld the denial, and DMAHS adopted that decision. The case went to the Appellate Division.

The Appellate Division’s Ruling

The court reversed. It found that DMAHS had applied an overly narrow standard by treating “estrangement” as essentially the only basis for a hardship waiver, without pointing to any regulation or formal guidance requiring that result. The court noted that DMAHS had never adopted regulations specifically interpreting the undue hardship provision — it was relying on an unwritten internal practice.

More importantly, the court held that an undue hardship determination has to be a fact-sensitive inquiry that considers the totality of the circumstances. In this case, the unrebutted facts were that the wife was elderly, in poor health, had asked her stepdaughter to stop asking for information because it was making her sick, and had not responded to six separate written requests from two different sources. There was no evidence that anyone was gaming the system to shield the wife’s assets. The agency, the court found, ignored all of this and focused exclusively on the fact that the couple had been living together before N.S. entered the nursing home — a single fact that does not, by itself, rule out hardship.

The court also found that the agency’s separate basis for denial — that N.S. himself had failed to provide his own financial records — was not supported by the record. The daughter had, in fact, provided the requested information; the agency’s own correspondence simply failed to track what had already been submitted.

The court reversed the denial and directed the agency to process the application without regard to the wife’s resources.

What This Means If You’re Applying

If you are applying for Medicaid on behalf of a spouse and the community spouse won’t or can’t provide financial information, do not assume the application is doomed. Document everything. Keep copies of every letter and email sent to the community spouse requesting information, and keep records of any response — or lack of one. If the community spouse’s refusal stems from health issues, cognitive decline, or sheer distress, get that documented too, ideally through a treating physician or a written account from someone who witnessed it.

Request a spousal waiver in writing and be explicit about the basis: cite the hardship that denial would create for the institutionalized spouse, not just the community spouse’s general unwillingness. And if the county agency denies the request based solely on the fact that the couple wasn’t estranged, know that DMAHS’s position on this issue has been challenged and rejected by an appellate court.

Spousal refusal and the hardship waiver are both narrow tools, and DMAHS does not apply them generously. An elder law attorney can help determine which approach fits your situation and how to build the record needed to support it.

Medicaid Eligibility for Lawfully Present Immigrants in New Jersey: What the New Federal Law Means for NJ FamilyCare

Medicaid Eligibility for Lawfully Present Immigrants in New Jersey: What the New Federal Law Means for NJ FamilyCare

by | Jun 9, 2026 | Consumer Advocacy, Legal Bulletin, Medicaid, Medicaid Updates

Federal law is changing who qualifies for NJ FamilyCare. Beginning October 1, 2026, many lawfully present immigrants may lose their coverage. Congress passed the One Big Beautiful Bill Act, which President Trump signed into law in 2025. Among its many provisions is a significant restriction on Medicaid eligibility for non-citizen immigrants. Starting October 1, 2026, certain lawfully present immigrants who are currently enrolled in NJ FamilyCare — New Jersey's name for its Medicaid program — may no longer qualify.

This is not a future concern. NJ has already begun mailing letters to potentially affected members to gather information and assess eligibility before the October 1 deadline. If you or someone you know receives one of these letters, the worst thing to do is ignore it.

Who Is Affected

The changes target a specific set of immigration categories. The following groups of lawfully present non-citizens may lose NJ FamilyCare coverage on October 1, 2026:

  • Refugees;

  • Asylees;

  • Certified victims of trafficking and their spouse, child, sibling, or parents;

  • Veterans or active-duty military and spouses or unmarried dependents who also have qualified non-citizen status;

  • Iraqi and Afghani parolees;

  • Individuals who were paroled into the U.S. between February 24, 2022 and September 30, 2024 under the Ukrainian Humanitarian Parole (UHP) program; and

  • People whose deportation is being withheld.

What these categories share is that they represent people who entered the United States through humanitarian or protection-based pathways — people who, in many cases, fled violence or persecution. Under existing rules, federal law treated many of them as eligible for Medicaid. The new law removes that eligibility for those who have not taken a specific additional step: transitioning to Lawful Permanent Resident (LPR) status.

The Green Card Exception

Adjusting to LPR status — becoming a permanent resident with a green card — does not automatically solve the problem. The law imposes a five-year waiting period. If you transitioned to LPR status less than five years ago, you may still be ineligible. The five-year clock runs from the date the immigrant obtains qualified alien status.

There are, however, carve-outs to the five-year rule. If you originally arrived in one of the affected categories and you have since transitioned to LPR status, you may still qualify even if it has been less than five years. These categories include:

  • Refugees;

  • Asylees;

  • Certified victims of trafficking and their spouse, child, sibling, or parents;

  • Veterans or active-duty military and spouses or unmarried dependents who also have qualified non-citizen status;

  • Amerasian immigrants;

  • Iraqi and Afghani special immigrants and parolees;

  • Individuals who were paroled into the U.S. between February 24, 2022 and September 30, 2024 under the Ukrainian Humanitarian Parole (UHP) program; and

  • People whose deportation is being withheld.

The state has been directed to treat those individuals more favorably than others in the LPR-under-five-years category.

If that sounds complicated, it is. The intersection of immigration status and Medicaid eligibility has never been simple, and the new law adds another layer of complexity. If you are uncertain whether these changes apply to you, do not try to figure it out alone.

Who Is Not Affected

Not every non-citizen is at risk. In addition to the categories noted above, several groups will continue to qualify under the new rules including:

  • Lawful Permanent Residents of at least 5 years (calculated from date on green card);

  • Lawfully present non-citizens who are pregnant, or under the age of 21;

  • Cuban/Haitian Entrants;

  • Compact of Free Association (COFA) migrants, including individuals from Micronesia, Marshall Islands, and Palau; and

  • Children under 19, regardless of their immigration status.

These populations are protected by separate statutory provisions and should not see a change in their eligibility on October 1.

What New Jersey Is Already Doing

NJ FamilyCare is not waiting until October. The state has begun sending outreach letters to members whose immigration status may bring them within the affected categories. These letters are not yet termination notices — they are requests for information to help the state determine who remains eligible and who does not.

If NJ FamilyCare already has what it needs to confirm your continued eligibility, you will receive a letter telling you your coverage has been renewed. If it needs more, you will receive a request for documentation or a renewal packet. The critical thing is to respond promptly. Failing to respond can result in a gap or termination of coverage, even if you are actually still eligible.

Members should also make sure their contact information is current. If your address or phone number has changed, call NJ FamilyCare Customer Service at 1-800-701-0710 (TTY: 711) now, before any letter goes undelivered.

The Broader Picture

These changes do not exist in isolation. The same legislation that is cutting Medicaid eligibility for immigrants also introduces work and community engagement requirements for certain adult enrollees beginning January 1, 2027, and shortens the renewal period from annually to every six months for those in certain plans. The cumulative effect of these changes is a significant increase in administrative burden on the states and more paperwork for some of the most vulnerable Medicaid enrollees in the state.

New Jersey has historically taken steps to extend coverage to immigrant populations beyond what federal law requires but those programs cost money. Whether New Jersey will maintain state funded coverage options is an open question.

Learn More

For a detailed explanation of how immigration status affects NJ Medicaid eligibility under existing rules, see our guide: NJ Medicaid and Immigration Status — What You Need to Know.

For a broader overview of the federal Medicaid cuts in the One Big Beautiful Bill Act affecting New Jersey residents, see: Federal Medicaid Cuts: What New Jersey Residents Need to Know.

The official NJ DMAHS information page on these changes is available at nj.gov/humanservices/dmahs/obbba/medicaid-federal-changes.shtml. The state has indicated it will update that page as additional guidance becomes available.

New Jersey Appellate Court Clarifies Judge’s Role in Guardianship Cases

New Jersey Appellate Court Clarifies Judge’s Role in Guardianship Cases

by | Jun 2, 2026 | Guardianship, Legal Bulletin

When a court decides to appoint a state agency as guardian over a family member's objection, what due process is the family entitled to? Can a judge make that call based on attorney reports and physician certifications alone — without testimony, without cross-examination, and without detailed findings of fact?

The New Jersey Appellate Division in the case In re F.M.W., decided February 20, 2026, held that the trial court is obligated to first consider all the evidence and make findings by clear and convincing evidence as to whether the person is incapacitated, even if that issue is uncontested. Then when considering who to appoint as guardian the court cannot simply rely on the recommendations of the court-appointed attorney for the incapacitated person. The court must also weigh the wishes of the incapacitated person (such as what is stated in a Power of Attorney), and if the issue of who should be guardian is contested the court must permit discovery on the issue. Finally, the court must conduct a plenary hearing that allows the parties to present evidence, offer witnesses and have the opportunity to conduct cross-examination. 

Background

F.M.W. was an elderly woman suffering from advanced Alzheimer’s dementia. She lived with her sister, R.W., her only relative, who served as her primary caregiver. In 2014 — before her cognitive decline — F.M.W. had executed a durable Power of Attorney designating R.W. as her agent.

In late 2023, Adult Protective Services received an anonymous referral reporting concerns about F.M.W.’s care. Over the following months, a Protective Services social worker conducted multiple home visits and encountered resistance from R.W. — who allegedly refused to provide medical information, blocked access to F.M.W. on some occasions, and was described by F.M.W.’s former aide and a longtime friend as struggling with mental health issues, including paranoia. The court-appointed attorney, William Saxton, Esq., ultimately “strongly opposed” R.W.’s appointment as guardian, describing her as showing “signs of deep instability” and alleging that her neglect had compromised F.M.W.’s physical health.

On September 13, 2024, the probate court held a telephonic hearing. After hearing arguments from counsel and reviewing Saxton’s report and the physician certifications, the court found that R.W. would not be an “appropriate guardian” and appointed the New Jersey Office of the Public Guardian instead. The court issued no findings of fact, made no clear and convincing evidence determination on incapacity, and gave no analysis of F.M.W.’s best interests. F.M.W. died on July 29, 2025, before the appeal could be decided.

The Legal Framework: What NJ Courts Are Required to Do

New Jersey’s guardianship process is governed by N.J.S.A. 3B:12-24 to -35 and Rule 4:86-1 to -8. I covered the process in detail in my posts on Understanding Guardianship in New Jersey: Why It May Be Necessary and How to Obtain It, and What Happens After You’re Appointed Guardian in New Jersey. The procedural safeguards embedded in these rules exist for an important reason: a finding of incapacity results in an individual’s loss of the right of self-determination — one of the most fundamental rights recognized under the New Jersey Constitution.

When a guardianship proceeding reaches the hearing stage, the court is required to undertake a two-step analysis. First, the court must determine by clear and convincing evidence whether the individual is incapacitated. Second, upon making that finding, the court must determine whether to appoint a general or limited guardian and must select an appropriate individual to serve in that role.

On the second question — who should serve as guardian — New Jersey law establishes a clear preference. Under N.J.S.A. 3B:12-25, the Legislature has prioritized surrogate decision-makers in the following order: first, the incapacitated person’s spouse or domestic partner; next, their heirs or friends; and lastly, the Public Guardian. A family member’s preference “must be recognized unless it is shown to the court’s satisfaction that the appointment of next-of-kin would be affirmatively contrary to the best interests of the incapacitated person.” In re Roll, 117 N.J. Super. 122, 124 (App. Div. 1971).

The court may also consider the incapacitated person’s own prior expressed wishes — including a durable Power of Attorney, health care proxy, or advance directive. N.J.S.A. 3B:12-25; see also R. 4:86-4(a)(2).

What the Probate Court Got Wrong

The Appellate Division identified several distinct failures in the probate court’s handling of the case.

No findings on incapacity

Even though incapacity was uncontested, the probate court was still required to make formal findings by clear and convincing evidence. The absence of a dispute does not eliminate the obligation to analyze the evidence and state the basis for the court’s conclusions. The court simply summarized the physicians’ conclusions without conducting any independent analysis.

No consideration of limited guardianship

The court appointed a plenary guardian without considering whether a limited guardianship — one that preserved some of F.M.W.’s decision-making rights — might have been more appropriate. New Jersey law requires this analysis. A person who is incapacitated in some respects may still retain sufficient capacity to make certain decisions, such as where to live.

No consideration of the existing Power of Attorney

F.M.W. had executed a durable Power of Attorney in 2014 designating R.W. as her agent — an expression of her own wishes while she had capacity. The probate court made no mention of this document. While the court was free to give it whatever weight it deemed appropriate, failing to consider it at all was error.

No plenary hearing on the contested issue

This was the central failing. The question of who should serve as guardian was genuinely contested — R.W. denied the allegations against her, and the record contained positive observations contradicting the concerns raised by Protective Services and Saxton. Despite this, the court resolved the contest based on the testimony of court-appointed counsel and written reports alone, without the opportunity for discovery and presentation of evidence, other witness testimony, and without cross-examination. In sum, the Appellate Division found that R.W. did not have a meaningful opportunity to challenge the evidence against her.

The decision to appoint a guardian for an incapacitated person ‘made without evidential basis, without examination and cross-examination of lay and expert witnesses, and without a statement of reasons is untenable in the extreme.’ J.G. v. J.H., 457 N.J. Super. 365, 373 (App. Div. 2019).

The Appellate Division’s Holding

📌 Key Holding: When the appointment of a guardian is contested, due process requires: (1) findings by clear and convincing evidence on incapacity; (2) consideration of whether limited guardianship is appropriate; (3) consideration of the incapacitated person’s prior expressed wishes, including any POA; and (4) a plenary hearing in open court with testimony, limited discovery, and cross-examination on the contested issue of who should serve as guardian.

The court acknowledged that the Public Guardian may ultimately have been the correct choice — the decision had no bearing on the merits because F.M.W. had already died. The point was the process. Overriding the statutory preference for a family member, and overriding F.M.W.’s own documented choice of R.W. as her agent, required more than a telephonic hearing and consideration of one-sided reports.

The Appellate Division reversed the probate court’s order and issued the decision for publication — establishing it as precedent for future guardianship proceedings — specifically because the procedural issues raised were “capable of repetition, yet evading review.”

The Planning Lesson: Why Power of Attorney and Advance Directives Matter

The F.M.W. case is also a reminder of why advance planning matters. F.M.W. had the foresight to execute a Power of Attorney designating R.W. as her agent — an expression of her own wishes that the probate court failed to even mention. Had the court given that document its proper weight, it may have changed the analysis significantly. For more on the documents every New Jersey adult should have in place, see my posts on Durable Power of Attorney, Springing Power of Attorney, Living Wills, and Medical Decision Making.