Court Is Not Required To Appoint Counsel For The Proposed Ward In Every Guardianship Lawsuit

Plaintiff, the executor of the estate of the proposed ward’s deceased daughter, and the proposed ward’s granddaughter, filed a lawsuit in the Superior Court of New Jersey, Chancery Division, General Equity Part, Bergen County, based upon an alleged oral promise made by the proposed ward to his deceased daughter. For the purpose of that litigation, plaintiffs filed another action in the Superior Court, Probate Part, asking the Court to declare the proposed ward mentally incapacitated, and seeking the appointment of a guardian ad litem and independent legal counsel for the proposed ward. It was undisputed that the proposed ward suffered from Parkinson’s Disease and a related condition identified as progressive supranuclear palsy, a neurodegenerative disease similar to Parkinson’s Disease, but which progresses more rapidly and is less responsive to treatment.

After an 11 week trial at which numerous medical experts, lay witnesses and the proposed ward himself testified, Hon. Ellen L. Koblitz, P.J.Ch., sitting in the Probate Part, determined that the proposed ward was not incapacitated. She also rejected the request for the appointment of a guardian ad litem, and she declined to appoint independent counsel pursuant to Rule 4:86-4(b), finding that the proposed ward was properly represented by counsel. Plaintiffs appealed.

Plaintiffs raised a number of issues on appeal. Plaintiffs first alleged that the trial court erred by not appointing counsel for the proposed ward as allegedly mandated by Court Rule 4:86-4(b) which provides that, in ordering a hearing on an complaint alleging incapacitation, the order:

shall include the appointment by the court of counsel for the alleged incapacitated person. Counsel shall (1) personally interview the alleged incapacitated person; (2) make inquiry of persons having knowledge of the alleged person’s circumstances, his or her physical and mental state and his or her property; (3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged incapacitated person or to discover any interests the alleged incapacitated person may have as beneficiary of a will or trust. … (emphasis added).

The Court found that the “shall” in Rule 4:86-4 was added to require the court to appoint counsel if the alleged incompetent has not retained counsel. The rule was never intended to require the appointment of counsel where, as in this case, the alleged incompetent already had retained counsel. Thus, the appeals court concluded that the trial judge correctly determined that the appointment of counsel was not mandated by the rule or warranted in this case.

Plaintiffs next argue that the trial court erred by not focusing on capacity as a “task specific” question, namely, the proposed ward’s inability to manage his financial assets in light of his allegedly diminished executive functions. However, the appeals court found that plaintiffs failed to demonstrate by clear and convincing evidence that the proposed ward was incapacitated, and that judge did not abuse her discretion in declining to appoint a limited guardian. Plaintiffs also argued that the court did not give sufficient consideration to the proposed ward’s physical limitations, the appellate court held that the record supported the trial judge’s determination that the proposed ward was not incapacitated despite his physical afflictions and limitations.

Finally, plaintiffs asserted that the trial judge erred in entering judgment with, instead of without, prejudice because the question of incapacity will inevitably arise again due to the nature of the proposed ward’s illness and, according to plaintiffs, the judgment has the potential of forever precluding the appointment of a guardian. However, the appeals court held that the court’s decision did not preclude a new guardianship action if plaintiffs can demonstrate that circumstances have changed at that time. As a result, the appeals court affirmed the trial court’s decision in all respects.

The case is annexed here – Matter of Robert Cohen