F.M.W. lived with her sister R.W., who was her only relative and caregiver. In 2023, Adult Protective Services (“APS”) received an anonymous report that F.M.W. was being neglected. Following its assessment, APS filed a verified complaint seeking the appointment of a permanent guardian for F.M.W. Based on its investigation of F.M.W. and R.W., APS recommended that the Office of the Public Guardian (“OPG”) be appointed as her guardian.
The probate court scheduled a hearing in the guardianship matter, and appointed counsel for F.M.W. The court-appointed attorney opposed the appointment of R.W. as guardian for F.M.W., based on R.W.’s “signs of deep instability … and … neglect.”
R.W. did not request discovery, a jury trial, or a plenary hearing, but she filed an answer to the complaint denying the allegations that she provided sub-standard care to her sister.
In a telephonic hearing, the probate judge that, based on reports by the court-appointed attorney, the court could not conclude that R.W. would be an appropriate guardian for F.M.W.; instead, the court appointed the OPG as guardian.
R.W. appealed the appointment of the OPG, rather than R.W., as F.M.W.’s guardian.
Although F.M.W. died prior to the appeal being decided, the appellate court determined that, because the issues raised were significant and capable of repetition in other cases, the appeal should not be dismissed.
The Appellate Division’s published opinion concluded that the probate court had erred by appointing the OPG without a hearing. It concluded that the “rigorous procedural safeguards” governing guardianships were in place to protect the person whose right of self-determination would be lost through the guardianship. A probate court must analyze whether there is clear and convincing evidence that the individual is incapacitated and, if so, who should be appointed as the guardian. The appeals court concluded that the probate court had misapplied its discretion (1) by failing to make adequate findings, by clear and convincing evidence, that F.M.W. was incapacitated (even though incapacity was not disputed); (2) by not conducting a hearing in open court, with testimony and cross-examination, as to who should be appointed as guardian; and (3) by not making detailed findings of fact and conclusions of law regarding the guardianship appointment.
In F.M.W.’s case, the issue was who should be appointed as guardian. According to statute, there is a priority for individuals to be considered as guardian: “first, the person’s spouse or domestic partner; next, their heirs or friends; and lastly, the Public Guardian.” As the court noted,
This “next-of-kin” 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 or his or her estate in some significant way…. The court may also consider a surrogate decision-maker… chosen by the incapacitated person before they became incapacitated by way of a durable power of attorney… health care proxy or advance directive.
Here, R.W. was F.M.W.’s next-of-kin and also her agent under a power of attorney. However, the court in its decision had not mentioned the power of attorney. As the appeals court noted, “[a]lthough the court was free to give whatever weight it deemed appropriate to this document, it erred in not considering it in its analysis.”
It concluded that, even though the OPG might have been the appropriate entity to be appointed as F.M.W.’s guardian, “at a minimum, the court was required to explain its reasons for rejecting a family member, as the preferred guardian, and appointing the state agency” as guardian.
The Appellate Division held that, in future guardianship proceedings, the guardianship court will be required to make findings, by clear and convincing evidence, regarding incapacity (even if undisputed). If the appointment of a guardian is contested, a plenary hearing will be required, with due process afforded to protect the incapacitated person; the parties should be permitted limited discovery on that issue, and be permitted to present testimony and evidence and conduct cross-examination at the plenary hearing.
A copy of the Superior Court Appellate Division decision in In re F.M.W. can be found here.