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In re Guardianship Services Regulations

Decided: December 31, 1984.


On appeal from the Department of Human Services.

Michels, Petrella and Baime. The opinion of the Court was delivered by Michels, P.J.A.D.


Joseph H. Rodriguez, Public Advocate, New Jersey Department of the Public Advocate (Public Advocate) challenges the validity of guardianship services regulations N.J.A.C. 10:45-1.3(b), (d) and N.J.A.C. 10:45-1.4(b) promulgated by the Department of Human Services (Department), Division of Mental Retardation (Division). These regulations provide guidelines for extending guardianship services to children receiving functional services from the Division who are orphaned, abandoned, or otherwise without a legal guardian. The regulations under attack read as follows:

10:45-1.3 Eligibility

(b) To be eligible for guardianship services, a mentally retarded minor must:

1. Be receiving functional services from the Division of Mental Retardation;

2. Be orphaned or abandoned and have no legally appointed guardian. Such status shall be verified by either;

i. Documentation that the child's legal guardian(s) is (are) deceased or;

ii. Documentation that the following efforts to locate the child's guardian have been unsuccessful:

(A) Notice by regular mail and follow-up by certified mail, return receipt requested, to the guardian's last known address, with no response received within 45 days;

(B) Discrete inquiry among any known relations, friends and current or former employers of the parent(s); and

(C) Direct inquiries, unless otherwise restricted by law, using the guardian's name and last known or suspected address, to the local post office, the Division of Motor Vehicles and any social service and law enforcement agencies known to have had contact with the guardian(s) both in New Jersey and other states. Failure to receive a response to the inquiries within 45 days shall constitute a negative response.

(d) Eligibility for a child continues as long as he or she:

i. Is receiving functional services;

ii. Is under the age of 18 years, and;

iii. Has no available legal guardian of the person. In any instance when a parent or legally appointed guardian, who had been previously inaccessible, again becomes available to exercise their role, guardianship services shall immediately and automatically cease.

(e) Prior to reaching the age of majority, a determination must be made regarding the issue of mental deficiency and the continuing need for guardianship services as an adult (N.J.S.A. 30:4-165.6; N.J.A.C. 10:43).

10:45-1.4 Provision of guardianship

(b) When a client is under 18 years of age and has met the eligibility criteria above (N.J.A.C. 10:45-1.3(b), the Bureau of Guardianship Services shall provide guardianship of the person services.


The Public Advocate challenges these regulations on equal protection and due process grounds and asserts that they are ultra vires. The standard of judicial review of regulations promulgated by an administrative agency such as the Department are thoroughly discussed and clearly stated in New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 560-563 (1978). The Supreme Court there emphasized that the powers of an administrative agency should be liberally construed to permit the agency to achieve the task assigned to it and that the administrative agency has such implied incidental powers as may be reasonably adopted to that end. See New Jersey Guild of Hearing Aid Dispensers, supra, 75 N.J. at 562; In re Suspension of Heller, 73 N.J. 292, 303 (1977); State v. Dolce, 178 N.J. Super. 275, 286 (App.Div.1981). Application of these principles to the Public Advocate's challenge to the regulations on ultra vires grounds compels the conclusion that the regulations under attack do not exceed the scope of the broad delegation of power to the Department and its Commissioner, and are not arbitrary, capricious or unreasonable. See Bergen Pines Hosp. v. Dept. of Human Serv., 96 N.J. 456, 477 (1984); N.J. Ass'n of Health Care Facilities v. Finley, 83 N.J. 67, 79 (1980), appeal dismissed, 449 U.S. 944, 101 S. Ct. 342, 66 L. Ed. 2d 208 (1980); Newark v. Natural Resource Coun. Dept. Env. Prot., 82 N.J. 530, 539-540 (1980), cert. den. 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). These regulations are part of regulatory guidelines designed to assure that guardianship services will be extended to mentally deficient minors who

during the time they are receiving "functional services" from the Division become orphaned, abandoned or otherwise are determined to be without a parent or guardian.

The Legislature has delegated broad powers to the Commissioner to promulgate rules and regulations aimed at implementing the policies and statutory duties of his department. These include regulations intended to "establish and maintain specialized facilities and services for the residential care, treatment, and rehabilitation of persons who are suffering from chronic mental or neurological disorders. . . ." N.J.S.A. 30:1-12. Indeed, pursuant to N.J.S.A. 30:4-25.7, the Legislature has mandated that:

The commissioner shall make all reasonable and necessary provisions to ensure the health, safety, welfare and earliest appropriate release of persons admitted to residential services for the mentally retarded. He shall provide further for educational, medical, dietetic, and social needs of any such person in accordance with such person's individual requirements, as determined by competent professional personnel.

Moreover, pursuant to N.J.S.A. 30:4-165.1, the Legislature has also directed the Department to provide mentally retarded persons with comprehensive evaluation, functional and guardianship services. This provision of the Act reads:

The department shall provide comprehensive evaluation, functional and guardianship services, as hereafter designated, in order that eligible mentally retarded persons may be provided with adequate training, care and protection.

Evaluation services shall include:

(1) primary evaluation services consisting of inpatient and outpatient facilities for the direct evaluation of medical, psychological, social, educational and related factors affecting the functioning of the individual and pertinent to his need for specialized care, training or treatment as a mentally retarded person; and

(2) secondary evaluation services consisting of facilities for the appraisal of such data ...

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