Court Explains The Role Of A Court-Appointed Counsel And Guardian Ad Litem In Action For Special Medical Guardian

In the recent case of In the Matter of J.M. for the Appointment of a Special Medical Guardian, Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. P – 036 – 10 (Hon. Ellen L. Koblitz, P.J.Ch., July 2, 2010), a Chancery Judge discussed the difference between an attorney appointed by the court to represent an alleged incapacitated person as legal counsel and an attorney appointed by the court to serve as guardian ad litem in an action to appoint a special medical guardian.

Valley Hospital sought the appointment of a special medical guardian to consent to life-saving dialysis treatment for J.M., a 42 year old Jamaican home health aide with end-stage renal disease. J.M.’s treating physicians indicated that dialysis was immediately necessary to save J.M.’s life, but J.M. refused dialysis treatment against medical advice. The hospital filed a Verified Complaint, claiming that J.M. lacked the mental capacity to consent to the medical treatment that she needed.

The court appointed an attorney to serve as J.M.’s legal counsel. After conducting an investigation, J.M.’s attorney filed a report which recommended that a special medical guardian be appointed by the court so that dialysis treatments could begin. The attorney’s recommendation was contrary to J.M.’s wishes. Upon receipt of the report, the court appointed a second attorney to represent J.M., and stated that, as J.M.’s legal counsel, the second attorney was required to advocate for J.M.’s expressed wishes. The first attorney was discharged as J.M.’s legal counsel because, in recommending that a special medical guardian be appointed against J.M.’s wishes, the first attorney had acted as a guardian ad litem rather than legal counsel for J.M.

In explaining the difference between a court-appointed counsel for an alleged incapacitated person and a guardian ad litem and why the court appointed a second attorney to represent J.M. after receiving the first attorney’s report, the court stated:

In competency matters, the court-appointed attorney’s role is to prepare a report after interviewing knowledgeable persons and investigating the situation.  The attorney represents the alleged incapacitated person … as he or she would in any other legal dispute. … [T]he attorney writing the report to the court will advocate the wishes of the patient… While the attorney must be a zealous advocate, there are limits to his representation when “the decisions [of the alleged incompetent] are  patently absurd or pose an undue risk of harm.” When such a situation arises, or other circumstances exist, the court may appoint a guardian ad litem in addition to the court-appointed counsel. The role of the guardian ad litem is to act as “eyes of the court” and further the best interests of the patient, even if those interests may differ from what the alleged incapacitated person wants. … However, although  appointed as counsel, [the first attorney], in fact, advocated the best interests of J.M. as would a guardian ad litem …. Thus, [the second attorney] was appointed after [the first attorney’s] report was received to represent J.M. to advocate J.M.’s expressed views. [citations omitted]

The court ultimately found that J.M. was, in fact, incapacitated. A special medical guardian was appointed, and dialysis was provided which saved J.M.’s life.

Judge Koblitz’s written opinion is attached here –  In the Matter of J.M. for the Appointment of a Special Medical Guardian