Court Affirms Appointment Of Ward's Daughter As Guardian Rather Than Her Husband, Contrary To Statutory Preference

In a recent decision in a contested guardianship case, entitled In the Matter of Sutton-Logan, Docket No. A-5220-07T3 (App. Div., August 31, 2009), Ben Logan and Floretta Sutton-Logan were married in 1996; this was the second marriage for each of them. Both Ben and Floretta had adult children born during their prior marriages. In January 2007, Floretta signed a durable power of attorney and advance medical directive appointed her daughter Karen from her first marriage as her financial and health care agent. Later that year, Floretta suffered a stroke which left her incapacitated and unable to handle her personal and financial affairs. She was admitted to a nursing home. Soon thereafter, Ben filed a lawsuit asserting that Karen improperly took control of Floretta’s owned property, and denied him input in medical and financial decisions. He sought to enjoin Karen from impeding his access to or transferring Floretta’s real and personal property, and he also sought a financial accounting. In response, Karen filed a verified complaint seeking to be appointed as Floretta’s guardian. After a trial, the court, among other rulings, awarded guardianship of Floretta to Karen, and Ben appealed. Ben argued that the trial court erred in ignoring the spousal preference stated in N.J.S.A. 3B:12-25, and further erred because Karen failed to rebut the allegation that Floretta’s execution of the power of attorney and medical directive resulted from Karen’s undue influence.

The Appellate Court affirmed. The Court held that the statute did not mandate the appointment of the spouse as guardian if the best interests of the ward dictated otherwise:

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. [citations omitted] 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.

The Court also found that the trial court had properly considered Floretta’s appointment of her daughter Karen as her durable power of attorney and health care agent since there was no evidence of undue influence in Karne’s appointment:

[Under] N.J.S.A. 3B:12-25[,] Consideration may be given to surrogate decision-makers, . . . chosen by the incapacitated person before the person became incapacitated by way of a durable power of attorney . . ., health care proxy or advance directive[]. Floretta was competent when she sought to prepare the powers of attorney and [the trial judge] found compelling [the drafting attorney’s] testimony . . . that “the power of attorney expressed [Floretta’s] legitimate intentions.