For the first time in New Jersey, the appellate court has ruled that legal counsel for the ward must be appointed by a chancery court in a proceeding to confirm the appointment of a testamentary guardian under a decedent’s Last Will and Testament. Matter of C.F.C., An Incapacitated Person, Superior Court, Appellate Division, Docket No. A-3168-11T3, decided May 9, 2013.

The ward, C.F.C., also known as Carl, is a fifty-two year old man with Down’s syndrome. He was found by the court to be incapacitated in 1985 and his mother and father were appointed his co-guardians. His father died in 1986. Carl lived with his mother until she died in 2011 at the age of 93.

Carl has five siblings, Jane, Abigail, Ronald, William and Jennifer. In her will, Carl’s late mother designated her daughter Jane as Carl’s guardian after her death. However, less than a week after her mother’s passing, Abigail filed a motion to be appointed substituted guardian of the person of Carl. Jane cross-moved for confirmation of her appointment as Carl’s guardian under their late mother’s will. The court appointed an attorney to represent Carl, but subsequent proceedings reflected the court’s and counsels’ confusion regarding the attorney’s role. The court ultimately viewed the attorney as a guardian ad litem (GAL). In her report, the GAL concluded that Abigail’s appointment would serve Carl’s best interests. However, the report did not state whether Carl had expressed a preference regarding who should serve as his guardian or where he wished to live. Further, the attorney never interviewed Jane with her attorney present.

The court conducted a two-day trial. Carl was not present, nor was he represented. Before testimony began, the court secured Jane’s and Abigail’s agreement that Carl was incapacitated, and confirmed their agreement that expert medical evidence on the issue of capacity was unnecessary. During the trial, confusion about the GAL’s role was apparent.

In a oral decision, the court summarized the testimony of the various witnesses. The judge referred to the GAL’s report, identifying her as a guardian ad litem, and not Carl’s legal counsel. In addition, in deciding the issue of incapacity, the court relied upon the medical evaluation of Carl prepared over twenty-five years earlier in support of the original guardianship application. Finally, the court ruled that Carl’s mother expressed her wish in her will that Carl be involved in family activities, and that Jane would be best able to fulfill that intent.

Abigail appealed, and the appellate court reversed. The court concluded first, that there was insufficient medical or psychological evidence to determine Carl’s best interests. Since the record lacked a current evaluation of Carl’s mental or physical health, his capacities, or his vocational, psychological, or medical needs, the court should have exercised its discretion to reopen the record, appoint an expert, and resume the hearing once a report was filed and the expert was available to testify.

Second, the court found that Carl was denied appointed counsel with clear direction to represent his interests. In describing the role of court-appointed counsel, the appeals court ruled that the attorney for the incompetent must do more than “merely file a report,” but “should zealously advocate the client’s cause.” And, for the first time in New Jersey, the appellate court ruled that legal representation was required in a proceeding to confirm appointment of a testamentary guardian under a Last Will and Testament.

Third, the appeals court held that a trial judge “shall also consider the preferences of the incapacitated adult.” In this case, the court found that the trial judge did not consider Carl’s own preferences, or determine if he was incapable of expressing them. Moreover, appointed counsel was also obliged to ascertain Carl’s preferences and, unless they were “patently absurd or posed an undue risk of harm,” to advocate for them, which was not done in this case. The trial court was also obliged to abide by Carl’s wishes regarding where he was to live, unless it was proved by clear and convincing evidence that he lacked the capacity to make that decision

Fourth, the appeals court directed the trial judge to determination whether Carl would suffer harm by attending the hearing in the case. If not, then Carl would also be entitled to decide whether to attend the guardianship trial or not.

The case is annexed here – Matter of C.F.C., An Incapacitated Person