Guardianship actions may be contested by the alleged incapacitated person him/herself, or by third parties, such as the alleged incapacitated person’s adult children. Issues raised in a contested guardianship action generally involve whether the alleged incapacitated person is, in fact, incapacitated; and, if so, who should be appointed as the alleged incapacitated person’s guardian. Each of these general issues is outlined below.
II. GUARDIANSHIP CONTESTED BY ALLEGED INCAPACITATED PERSON
An alleged incapacitated person may oppose a guardianship application either before or after a guardianship Order to Show Cause is filed.
a. Prior to Filing of Order to Show Cause
According to the New Jersey Rules of Court, a complaint for guardianship is to include affidavits of two physicians (or one physician and one psychologist) based upon a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint, supporting the complaint and giving the physician/psychologist’s opinion regarding the alleged incapacity. R. 4:86-2(b). However, there are circumstances in which the alleged incapacitated person refuses to cooperate with or submit to an examination.
In such a case, the person filing for guardianship may submit, in lieu of the above-referenced affidavits, an affidavit of a physician/psychologist “stating that he or she has endeavored to make a personal examination of the alleged incapacitated person not more than 30 days prior to the filing of the complaint but that the alleged incapacitated person or those in charge of him or her have refused or are unwilling to have the affiant make such an examination.” R. 4:86-2(c).
The court may then order the alleged incapacitated person to submit to an examination. R. 4:86-4(c).
b. After Order to Show Cause is Filed
Following the filing of a guardianship action, the court will appoint counsel for the alleged incapacitated person, who must personally interview the alleged incapacitated person, inquire into the alleged incapacitated person’s circumstances, and file a report with the court making recommendations concerning incapacity and other issues. R. 4:86-4(b). As set forth below, the court-appointed counsel must be mindful of his or her ethical obligations when the alleged incapacitated person wishes to contest a guardianship action, particularly in cases in which the court-appointed attorney believes that a guardianship may be in the alleged incapacitated person’s best interests.
The court-appointed counsel for an alleged incapacitated person has a duty to act as “a zealous advocate for the wishes of the client.” In re M.R., 135 N.J. 155, 174 (1994) (citation omitted). In other words, the attorney must advocate a result that is consistent with the client’s preferences, rather than advocating for the client’s best interests. As directed by M.R., the court-appointed counsel must be guided by R.P.C. 1.14, which provides that, when representing a disabled person, the attorney should maintain, to the extent possible, a normal attorney-client relationship:
(a) When a client’s ability to make adequately considered decisions in connection with the representation is diminished, … the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including … seeking the appointment of a guardian ad litem, conservator, or guardian.
Id. at 175.
Thus, as M.R. instructs, “the attorney’s role is not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes. That role, however, does not extend to advocating decisions that are patently absurd or that pose an undue risk of harm to the client.” Id. at 176. As the M.R. Court concluded, “generally the attorney should advocate any decision made by the …disabled person. On perceiving a conflict between that person’s preferences and best interests, the attorney may inform the court of the possible need for a guardian ad litem.” Id. at 177-78.
Following M.R., the role of the court-appointed attorney was further explored by the court in In re Mason, 305 N.J. Super. 120, 125 (Ch. Div. 1997):
The court-appointed attorney in an incompetency matter represents the client’s wishes as an attorney would represent a client in any particular dispute. The individual, the subject of the incompetency hearing, has rights, preferences and desires that are not wholly usurped because of the action concerning his or her alleged incompetency…. Perhaps the only limitation placed upon such representation is that the attorney advocate on behalf of the client “unless the decisions are patently absurd or pose an undue risk of harm.”
Id. (citations omitted).
The M.R. Court quoted the Supreme Court Judiciary Surrogates Liaison Committee and Civil Practice Committee Guidelines for Attorneys, which stated that,
[t]he role of the representative attorney is entirely different from that of a guardian ad litem. The representative attorney is a zealous advocate for the wishes of the client. The guardian ad litem evaluates for himself or herself what is in the best interests of his or her client-ward and then represent[s] the client-ward in accordance with that judgment.
The M.R. decision was founded upon the recognition that “[a]dvocacy that is diluted by excessive concern for the client’s best interests would raise troubling questions for attorneys in an adversarial system.” Id.
Following the M.R. decision, R. 4:86-4 of the New Jersey Rules of Court was amended to distinguish between the role of guardian ad litem and that of the court-appointed attorney in a guardianship action:
(d) Guardian Ad Litem. At any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged incapacitated person and to present that evaluation to the court.
Further discussion of the standard of proof regarding incapacity hearings is set forth in Section III(a), below.
III. GUARDIANSHIP CONTESTED BY THIRD-PARTIES (AIP’S CHILDREN)
When there is a guardianship action contested by third parties (generally, such contests are between the alleged incapacitated person’s adult children, or between children from a prior marriage and a new spouse), issues typically involve (1) whether the alleged incapacitated person is, in fact, incapacitated; and/or (2) who is the more appropriate person to be appointed guardian.
a. Contest Regarding Capacity
With regard to the first issue, whether the alleged incapacitated person is, in fact, incapacitated, “the clear public policy of this State, as reflected in [the State Constitution, legislative acts, administrative regulations and judicial decisions] is to respect the right of self-determination of all people.” M.R., 135 N.J. at 166. The court is considered the guardian of personal rights, with a “special responsibility to protect the right of self-determination.” Id. (quoting In re Conroy, 98 N.J. 321 (1985)). Therefore, even in cases in which the alleged incapacitated person chooses not to testify, “the court must still independently consider all of the evidence, including the doctors’ reports and the report of the court appointed attorney.” Id.
The application for guardianship must be denied unless the petitioner proves by clear and convincing evidence that the person is incapacitated. In re Macak, 377 N.J. Super. 167, 175-6 (App. Div. 2005) (citing R. 4:86-6; M.R., 135 N.J. at 169; N.J.S.A. 52:27G-29a; In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003)).
b. Contest Regarding Appointment of Guardian
The second issue, regarding who is the more appropriate person to be appointed guardian, is determined based upon the court’s parens patriae jurisdiction, by which a court “may intervene in the management and administration of an incompetent’s estate in a given case for the benefit of the incompetent or of his estate.” In re Trott, 118 N.J. Super. 436, 440 (Ch. Div. 1972); see In re Schiller, 148 N.J. Super. 168, 177 (Ch. Div. 1977). The appointment of a guardian for an incapacitated person is governed by statute.
Pursuant to N.J.S.A. 3B:12-25,
The Superior Court may … appoint a guardian for [an incapacitated person’s] person, guardian for the estate or a guardian for the person and estate. Letters of guardianship shall be granted to the spouse or domestic partner … 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 proper person as will accept the same….
See also R. 4:86-6 (c) (letters of appointment shall be granted “to the … spouse … or next of kin” … or the Office of the Public Guardian for Elderly Adults …” unless “none of them will accept the appointment or if the court is satisfied that no appointment from among them will be in the best interests of the incapacitated person or estate”).
In sum, although the next of kin of a minor is entitled to be appointed guardian unless such appointment is clearly contrary to the minor’s person or estate, the appointment of a guardian of an adult incapacitated person is based upon the best interests and welfare of the incapacitated person, rather than a kinship-hierarchy preference. Pressler, Current N.J. Court Rules, Comment on R. 4:86-6 at 1957 (2011) (citing In re Queiro, 374 N.J. Super. 299, 310-311 (App. Div. 2005)). Where a parent or spouse who has been appointed guardian of an incapacitated person makes a testamentary appointment of a guardian pursuant to N.J.S.A. 3B:12-30, a court will give “due consideration” to that testamentary appointment. Pressler, Current N.J. Court Rules, Comment on R. 4:86-6 at 1957 (2011).
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