Guardianship of Domestic Partners

March 9, 2006

The New Jersey Legislature recently enacted A1922 (P.L.2005, c. 304)[2], a bill to amend various sections of the guardianship laws. In part, the amendments in the bill were made to clarify that domestic partners were to receive treatment equal to that of a married spouse in regard to guardianship proceedings.[3] The bill was passed at the same time the Legislature enacted S2083 (P.L.2005, c.331)[4], which further amended the probate code to clarify that domestic partners were to receive equal treatment throughout the remainder of Title 3B.

INTRODUCTION

For those attorneys who practice in the area of elder law and guardianship, the changes require an understanding of the New Jersey Domestic Partnership Act. This article provides an overview of the relevant parts of the DPA and an overview of the changes A1922 and S2083 have made to conform guardianship law with domestic partnership law. It also discusses some special issues raised by the inclusion of domestic partners and, in particular, the problems involved in interstate recognition of guardianship proceedings involving domestic partners.

A. Overview of the Domestic Partnership Act

The New Jersey Domestic Partnership Act (DPA),[5] enacted in January 2004, provides legal recognition for eligible same-sex and opposite-sex couples that register their partnership in one of the ways mandated by the Act. Initial commentary on the Act focused on the handful of statutes that were amended by the DPA, including the Law Against Discrimination, and certain tax provisions. [6] To many of these commentators, the rights provided under the Act were viewed as significantly limited to a subset of approximately ten or so of the rights of married couples. [7] However, subsequent court decisions [8] have focused on the legislative intent expressed in section 2 of the Act that all persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples under the laws of New Jersey, [9] and have consequently interpreted the DPA broadly to include the challenged rights. [10]

Regardless of the extent of these available rights granted under the Domestic Partnership Act, it is clear that the rights, benefits and responsibilities are granted only to partners who have registered their domestic partnership in one of the ways mandated by the DPA. [11] Partners who have not registered, or whose domestic partnership has terminated, are treated the same as any unmarried cohabitants. [12] Absent a guardianship designation in an advanced directive, [13] the partner will have no more right to be appointed as guardian than any other interested stranger, even though the partners may have lived together for many years.[14] Among many other reasons for registration, eligible couples should be advised of this requirement.

Because the Domestic Partnership Act specifically recognizes a domestic partnership, civil union or reciprocal beneficiary relationship entered into outside New Jersey if it was valid under the laws of that jurisdiction, as valid in New Jersey.[15] Thus, a couple who registered in a Vermont [16] or Connecticut[17] civil union, a California [18] or Maine [19] domestic partnership, a Hawaiian [20] or Vermont [21] reciprocal beneficiary relationship, or any other jurisdiction that provides some form of registry [22] is entitled to the rights and obligations under the New Jersey DPA without the need to undergo subsequent registration in this state. A same-sex marriage, however, even where validly entered into in another jurisdiction, such as Massachusetts or Canada, is not currently recognized in New Jersey as equivalent to a domestic partnership.

An attorney advising a domestic partner as to his or her rights in a guardianship proceeding must enquire into two things: (1) have the partners validly registered their domestic partnership, either here or elsewhere; and (2) is the domestic partnership still valid? If all of these questions are answered in the affirmative, the partner will have the same rights in regard to guardianship as those afforded to a married spouse.

B. Eligibility Requirements

To be eligible to enter into a legally recognized domestic partnership in New Jersey, the partners must meet the following criteria, prior to or at the time of registration:

• The partners must share a common residence[23] and be otherwise jointly responsible[24] for each other's common welfare.[25]
• The partners must agree to be jointly responsible for each other's basic support.[26]
• Neither person may be in a marriage recognized by New Jersey law or a member of another domestic partnership.[27]
• They must be unrelated to each other by blood or affinity.[28]
• Both partners are of the same sex, except where two persons of opposite sex are both 62 or older.[29]
• They must have chosen to share each other's lives in a committed relationship of mutual caring.[30]
• Both must be at least 18 years of age.[31]
• Neither may have been in a domestic partnership that was terminated less than 180 days prior to registration, unless it ended as the result of the death of the prior partner.[32]

The common residence requirement generally means that the partners must share a place to live in New Jersey at the time of registration.[33] However, this common residence does not need to be the partners' only residence, nor are they required to be domiciled in New Jersey. Thus, a couple with a winter home in Florida, even if they have declared Florida to be their domicile, may register in New Jersey if they have a summer residence in this state. Non-residents of New Jersey may not register in this state unless one (or both) of the partners is a member of a New Jersey administered retirement system.[34]

Joint responsibility means that the partners agree to provide for each other's basic living expenses should one become unable to do so. This requirement is narrowly defined to mean the cost of basic food and shelter, including health care and other expenses paid by an employer. Couples may modify this requirement in an agreement between the partners.[35]

For couples who registered in another jurisdiction, the eligibility requirements may be somewhat different and may, in some cases, conflict with the eligibility requirements in New Jersey. For example, Hawaii[36] and Vermont[37] both allow closely related individuals to enter into a status known as a reciprocal beneficiary relationship. The DPA explicitly recognizes such relationships as equivalent to a domestic partnership.[38] Thus, a couple who would otherwise be ineligible in New Jersey may circumvent the restriction by registration in either of these states.

C. Registration Process

Registration in a domestic partnership in New Jersey is a relatively simple process: the partners must demonstrate they are eligible to enter into a domestic partnership and they must jointly file an Affidavit of Domestic Partnership.[39] The Affidavit is filed with any local registrar, who is either the city clerk in a first-class city, or the registrar of vital statistics in most other municipalities. Both partners are required to appear together.

The partners are required to show proof of their common residence and joint responsibility.[40] They may submit the following forms of proof:

• A joint deed, mortgage or lease.[41]
• A joint bank account.[42]
• Designation by one partner of the other as a primary beneficiary in a will, an insurance policy or retirement plan.[43]
• A joint title to a motor vehicle.[44]

If a partner was previously in a marriage recognized in New Jersey, he or she will also be asked to show a certified copy of the divorce decree. Similarly, if a partner was in a prior domestic partnership, he or she must show proof that it was terminated more than 180 days prior to registration, or proof of the prior partner's death.

Upon demonstration of eligibility, the registrar will provide an Affidavit of Domestic Partnership to be completed by the partners and sworn to in the registrar's presence. Upon payment of the required fee, the partners will then each receive a copy of the affidavit[45] and will be issued Certificates of Domestic Partnership.[46] Additional copies of this certificate may be obtained for an additional fee.

D. Separation and Termination

A domestic partnership is terminated by a proceeding in the Chancery Division-Family Part that is similar to dissolution of a marriage.[47] Upon granting the termination, the court will issue a judgment of termination and notify the State registrar.[48] Termination in other jurisdictions, particularly Hawaii and Maine, do nor require a judicial proceeding, and proof of the termination in these cases will be in the form of a notarized letter sent to those state's Secretaries of State.[49] Unlike marriage, there is currently no defined procedure for nullification of a domestic partnership, nor is there anything similar to the divorce from bed and board.

As in marriage, one of the reasons for termination is separation for at least 18 or more consecutive months, with no reasonable prospect of reconciliation.[50] Furthermore, it is not considered a separation if one partner temporarily leaves the common residence to reside elsewhere, so long as there is intent to return.[51]

E. Proof of Registration

There is no requirement under the law or the rules of court that a partner be required to show proof of his or her registration in order to seek guardianship over an incapacitated domestic partner. Indeed, if proof is required of domestic partners but similar proof is not required of married spouses, the request would probably constitute a denial of equal protection and, perhaps, a violation of the Law Against Discrimination. However, if an interested party raised the issue of validity of the domestic partnership in a contested guardianship proceeding, then proof of the continued validity of the domestic partnership may be required.

Proof that the partners were registered in New Jersey would be in the form of a valid Certificate of Domestic Partnership, which may be obtained by application of the partner to the state registrar. For registrations in other jurisdictions, some other form of proof may be required, such as a certificate of civil union issued by Vermont or Connecticut, or a certificate of domestic partnership issued in Main or California. Upon presentation of such proof, opposing counsel should contact the issuing authority and determine whether the domestic partnership or civil union has been terminated.

GUARDIANSHIP AND SAME-SEX PARTNERS

Following passage of the Domestic Partnership Act, it was unclear as to whether the DPA extended to domestic partners the same rights of married couples under the probate code, including the right of a husband or wife to be named guardian of their incapacitated spouse in preference to any other family member. During the process of amending the guardianship laws, it became clear that language needed to be added to clarify that domestic partners are to receive treatment equal to that of a married spouse in matters of guardianship. Following a subsequent revision, the passage of A1922 (P.L.2005, c.304) ensured that this portion of the probate code now conformed with the legislative policy expressed in section 2 of the Domestic Partnership Act, that all persons in domestic partnerships should be entitled to certain rights and benefits that are accorded to married couples under the [probate] laws of New Jersey.

A. Recent Amendments to the Guardianship Laws

In general, A1922 amended the guardianship laws by amending nearly every occurrence of spouse to read spouse or domestic partner. In addition, S2083 (P.L.2005, c.331), which amended the remainder of the probate code, made changes to certain definitions that also clarified the rights of domestic partners in respect to guardianship as well as intestate succession[52], omitted domestic partners[53], and elective share[54]. Thus, the definition of heir now includes the surviving spouse or domestic partner among those who are entitled under the statutes of intestate succession to the property of the decedent, and a definition of domestic partner has been added.[55]

Although not specifically amended in either A1922 or S2083, the term interested person or interested persons must now be read to include domestic partners. For purposes of probate, a person in interest or interested person, is a spouse, heir or next of kin[56], or a person who would take under the rules of intestacy.[57] Since a domestic partner is clearly defined as an heir[58] and a person who would take under the rules of intestacy[59], domestic partners are now among those who must be provided with notice.[60]

Domestic partners are now entitled to treatment equal to that of a spouse when it comes to the appointment of a guardian. So long as the partner's share a common residence, at the time the incapacitation arises, it is mandatory that the court grant letters of guardianship to the domestic partner.[61] Once appointed as guardian, the domestic partner may, by will, appoint a testamentary guardian over his or her partner.[62]

There are several references to married minors in the guardianship laws that are unaffected by the Domestic Partnership Act. New Jersey law provides that minors may be married with the consent of their parents. Because the Domestic Partnership Act requires individuals to be at least eighteen years of age in order to enter into a domestic partnership, these references are unchanged.[63]

B. Amendments to the Rules governing Guardianships

As of the date of this article, the Supreme Court has not modified the Rules governing guardianship proceedings. Nonetheless, the Rules must be read consistently with the legislative intent expressed in A1922 and S2083. For example, R. 4:81-1, which governs format for the complaint in a guardianship proceeding requires that the complaint state the name of the alleged incapacitated person's spouse; clearly this should be the name of the person's domestic partner, where applicable. R. 4:86-3, which provides for disqualification of an affiant, must now be interpreted to invalidate an affidavit submitted by a physician or psychologist who is related … through blood, marriage or domestic partnership, to the alleged mentally incapacitated person.

Notice of a hearing on the guardianship must now be given to the incapacitated person's domestic partner[64], if any, and proof that notice was given to the domestic partner must be provided to the court.[65] In addition, the plaintiff must also show that he or she provided the alleged incapacitated person with an opportunity to communicate with relatives, including the person's domestic partner, if any.[66] Finally, R. 4:86-6(c), which specifies who may be named a guardian, must be read to conform to the statute. Thus, the court shall grant letters of guardianship to the incapacitated person's … domestic partner if they are not separated at the time the incapacity arose.

SPECIAL PROBLEMS

The recognition of domestic partners as equivalent to spouses in regard to guardianship raises some interesting special problems.

A. Capacity to Enter Into Domestic Partnership

New Jersey's marriage laws prohibit the issuance of a marriage license when, at the time of application, either applicant has been adjudged legally incompetent.[67] There is nothing similar in the Domestic Partnership Act; capacity is not a legal requirement for registering a domestic partnership and lack of capacity is not a specified barrier. However, if domestic partnership is viewed as more in the nature of a contract, the partners would be required to have sufficient capacity to enter into a contract.

B. Termination by Guardian

The guardianship laws, as amended, make no mention of the right to bring a cause of action for termination, although the right to bring an action for divorce or annulment is specifically allowed.[68] However, the powers granted to a guardian are not limited, and the right to file a divorce action is illustrative.[69] Absent a specific limitation in the judgment of guardianship, the powers granted to guardians most likely include the power to bring a termination proceeding on behalf of a ward who had previously entered into a domestic partnership.

C. Designation of Guardians in Advanced Directives

The amendments have added a provision that requires the court to give consideration to designations of guardian made in an advance directive, such as a durable power of attorney or medical proxy, when naming a guardian.[70] Although this provision does not go as far as one would like,[71] it does help provide some guidance to the court as to the expressed preferences of the alleged incapacitated person.

Some same-sex couples are faced with one or more hostile family members, any of whom may seek designation as a guardian. For such couples, it is particularly important that the partners name each other as their preferred guardian in an appropriate advance directive. In addition, the partners should also name those family members who they would not want to be named guardian. Although clearly not binding on the court, such a statement by the alleged incapacitated person would certainly be persuasive and might prevent a family member who is hostile to the partnership from contesting a guardianship designation.

D. Nonresident Issues

The amendments now provide that the court may appoint a guardian over the property in this State of a nonresident who has been found to be incapacitated under the laws of another state.[72] However, what if the nonresident had entered into a New Jersey domestic partnership (or one of its recognized equivalents), and someone other than the partner was appointed guardian? The court should inquire into the reasons the other state did not appoint the domestic partner as guardian and, if it finds that the primary or only reason for not so appointing the partner was a legal prohibition on the recognition of the domestic partner, the court should decline to rubber stamp the non-resident guardian and consider appointing the partner as guardian, at least in New Jersey.

E. Interstate Recognition

Probably the thorniest problems will arise in the context of interstate recognition of guardianships involving same-sex couples. In an increasingly mobile society, there is no assurance that a same-sex couple will remain in New Jersey, and couples need the flexibility to relocate for employment or other reasons. For older couples, moving to another state may be an economic necessity once the partners are retired.

There are two common scenarios involving interstate recognition of guardianship. The first scenario involves recognition of letters of guardianship granted to a domestic partner in New Jersey who subsequently move outside of the State. The second scenario arises when a hostile family member snatches the ward and takes them to another state. In either case, the result will depend upon whether the new state recognizes a New Jersey domestic partnership, is neutral on the recognition, or is legally prohibited from recognition.

In recent years, 44 states have enacted some form of legal prohibition on the recognition of same-sex relationships.[73] These prohibitions, usually referred to as defense of marriage acts, (nicknamed miniDOMAs) may be enacted as either statutory prohibitions or as amendments to a state's constitution. They range from simple prohibitions on same-sex marriage to draconian prohibitions of same-sex marriage, domestic partnerships, civil unions, or any legal relationship purporting to provide the rights and benefits of marriage, as well as any rights or obligations arising from such relationships.[74]

Among the most far-reaching prohibitions is that found in the so-called Affirmation of Marriage Act enacted in 2004 by the Commonwealth of Virginia.[75] This act provides that

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

A recent case illustrates the problem that could arise in the context of a guardianship. Two lesbian members of a former civil union are contesting a temporary custody determination arising out of the termination of that civil union. The birth mother moved to Virginia and, in an attempt to circumvent the Vermont court's custody ruling, sought a determination of parenthood in the Virginia court.

The Virginia court has refused to recognize the prior jurisdiction of the Vermont court on the basis that it arose out of a civil union, a status that the Virginia court is prohibited from recognizing under the Affirmation of Marriage Act. The outcome in this case is undecided, as the parties proceed through each state's respective Supreme Courts. Until such time as the United States Supreme Court chooses to hear this or a similar matter, interstate recognition of guardianship designations, as well as other matters, involving domestic partners will be fraught with difficulty.

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