Chancery Court Dismisses Contested Guardianship Action Without A Hearing; Appellate Division Affirms

In a victory to the contesting parent, the dismissal of a daughter’s guardianship application without a hearing was recently affirmed by the Appellate Division in In re Keeter, No. A-0553-10T4 (May 11, 2011).

Keeter centered on a daughter’s application seeking guardianship of her 89-year old mother. The application was supported by a certification of the mother’s treating physician, stating that she was incapable of managing her care or finances, and from a second doctor, who stated that she was “not completely incapacitated” but that “it would probably be in her best interest” to have a guardian, or “at least” a conservator, appointed. (Slip op. at 3).

The court-appointed attorney for the mother found Mrs. Keeter to be “coherent and pleasant,” and “adamant” that she did not need a guardian. Mrs. Keeter’s son opined that his mother was competent. The court-appointed attorney arranged for Mrs. Keeter to be examined by a third doctor, who found that Mrs. Keeter exhibited “mild signs of cognitive impairment” but that she was not incapacitated. (Id. at 3-4).

The court-appointed counsel issued her report, which stated that Mrs. Keeter needed “some assistance” with her person and property, and that it was in her “best interests to, at the very least, have a conservator appointed.”(Id. at 6). (Although these statements regarding Mrs. Keeter’s best interests appear to be positions more appropriately taken by a guardian ad litem, the appellate court found that the court-appointed counsel “adequately performed her duties ‘not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes.’” Slip op. at 13 (quoting In re M.R.). Perhaps not surprisingly, following the filing of the court-appointed counsel’s report, Mrs. Keeter hired private counsel to represent her in the guardianship action.)

On the return date of the Order to Show Cause, Mrs. Keeter’s newly retained private attorney waived testimony, and the Chancery Court allowed the matter to proceed in a summary manner, following which the court dismissed the guardianship complaint. The court concluded that, based upon the testimony of the court-appointed counsel and the affidavits submitted, the plaintiff had failed to meet her burden of proving the need for guardianship by clear and convincing evidence. (Id. at 7).

On appeal, the daughter claimed that the lower court erred in dismissing the complaint without a hearing, particularly because the court-appointed attorney had not consented to the waiver of hearing. The Appellate Division disagreed. It found that, pursuant to R. 4:86-6(a) and N.J.S.A. 3B:12-24, unless the alleged incapacitated person demands a jury, upon consent of counsel for the alleged incapacitated person, the court may rely upon the affidavits submitted. The court below had found that the report of Mrs. Keeter’s treating physician (who was the only doctor concluding that Mrs. Keeter was incapacitated) was a “fill in the blanks” report without narrative, and that the doctor stated Mrs. Keeter was not capable of attending the hearing while, in fact, she did attend court on the Order to Show Cause return date. The court found that the report of the second doctor submitted by the plaintiff was inconclusive, and that the physician who examined Mrs. Keeter at the request of the court-appointed attorney found Mrs. Keeter to be competent.  Accordingly, the Appellate Division found that there was sufficient credible evidence to support the chancery court’s decision; the fact that the court-appointed attorney did not consent to the waiver of hearing was immaterial, since Mrs. Keeter had retained a private attorney who consented to the waiver of hearing. (Slip op. at 10-14).

Because the plaintiff had failed to establish that Mrs. Keeter was incapacitated, the court rejected plaintiff’s other argument that a limited guardianship should have been ordered, finding that the court “had no obligation to impose a limited guardianship where incapacity has not been established.” (Slip op. at 15).  Instead, because Mrs. Keeter was not incapacitated, it was within her rights to agree to a voluntary conservatorship. (Id. at 15).

The case is annexed here – Matter of Keeter