Law Lessons from IN THE MATTER OF FLORETTA SUTTON-LOGAN, A-5220-07T3, August 31, 2009:

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“Jurisdiction over an incompetent person requires a determination of domicile.” In re Seyse, 353 N.J. Super. 580, 586 (App. Div.) (citing In re Estate of Gillmore, 101 N.J. Super. 77, 90 (App. Div.), certif. denied, 52 N.J. 175 (1968)), certif. denied, 175 N.J. 85 (2002). Unlike a residence, “[d]omicile is a place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Ibid. A change in residence for a specific purpose does not necessarily equate to a change in domicile. In re Michelsohn’s Will, 136 N.J. Eq. 387, 390 (Prerog. Ct. 1944).

Every person has a domicile at all times, and no person has more than one domicile at any one time. A domicile once established continues until it is superseded by a new one. Domicile may be acquired in one of three ways: (1) through birth or place of origin; (2) through choice by a person capable of choosing a domicile; and (3) through operation of law in the case of a person who lacks capacity to acquire a new domicile by choice.

[Gillmore, supra, 101 N.J. Super. at 87.]

Discerning domicile is a factual determination.

N.J.S.A. 3B:12-25 provides:

Letters of guardianship shall be granted to the spouse . . . as defined in section 3 of [N.J.S.A. 26:8A-3], if the spouse is living with the incapacitated person as [husband] and wife . . . at the time the incapacitation arose, or to the incapacitated person’s heirs, or friends, or thereafter first consideration shall be given to the Office of the Public Guardian for Elderly Adults in the case of adults within the statutory mandate of the office, or if none of them will accept the letters or it is proven to the court that no appointment from among them will be to the best interest of the incapacitated person or the estate, then to any other person as will accept the same[.]

In N.J.S.A. 3B:12-25, the Legislature established a statutory preference in favor of family members in the appointment of special guardians. In re Queiro, 374 N.J. Super. 299, 309 (App. Div. 2005); In re J.M., 292 N.J. Super. 225, 239 (App. Div. 1996). It is clear the Legislature’s intent affords the trial court the discretion to appoint a guardian in the best interests of the incapacitated person. The statute does not mandate that the first choice when appointing a guardian must be the incapacitated person’s spouse. Instead, the statute presents a disjunctive list of potential persons whom the court must give “first consideration,” prior to awarding guardianship to the Office of Public Guardian for Elderly Adults.

See related Blog Post by Donald D. Vanarelli, Esq.

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