This was a contested guardianship case involving S.H., called “Sarah” by the court, a 28 year old incapacitated woman. The principal issue in the case was whether Sarah’s guardian should be her mother, B.H. (Barbara), who filed the guardianship action, or J.H. (Joan), Sarah’s adult sister. Joining Joan in opposing Barbara’s appointment were: Barbara’s ex-husband, M.H. (Mark), the father of Joan and Sarah; a state agency, Adult Protective Services (APS); and, the court-appointed attorney who represented Sarah. The trial court ultimately appointed Joan as Sarah’s guardian, a decision that was upheld by the Appellate Division. The court also awarded fees to Sarah’s counsel, who was appointed by the court, holding Barbara, Joan and Mark equally responsible to pay the fee award.

Barbara appealed, arguing that the trial court erred by failing to appoint Barbara, who was Sarah’s closest relative. Barbara also challenged the court’s fee award.

The appeals court affirmed the lower court’s decisions in all respects. The appeals court ruled that, in selecting a guardian for an incapacitated adult, a trial judge:

[S]hall prefer the ward’s spouse, or if there is none, the next closest relative. See In re Roll, 117 N.J. Super. 122, 123 (App. Div. 1971); see also In re Quiero, 374 N.J. Super. 299, 311 (App. Div. 2005) (recognizing “a kinship-hierarchy preference” for appointment of non-testamentary guardians); N.J.S.A. 3B:12-25 (stating that letters of guardianship shall be granted to the spouse or domestic partner . . . or to the incapacitated person’s heirs, or friends); R.4:86-6(c) (stating the court shall appoint “the incapacitated person’s spouse . . . or . . . the incapacitated person’s next of kin”); Pressler & Verniero, Current N.J. Court Rules, comment 2 on R.4:86-6 (2014) (that the court shall follow the traditional table of consanguinity to determine who is preferred).

However, the court may override the preference under the table of consanguinity if it would be “affirmatively contrary to the best interests of the incompetent or his estate in the sense of being deleterious thereto in some significant way.”

The court also discussed the role which the incapacitated person’s expressed preferences play in selecting a guardian:

[A] trial court … must protect the incapacitated adult’s personal rights, and maximize, to the extent feasible, the incapacitated adult’s personal liberty. In re M.R., 135 N.J. 155, 166 (1994). The court must consider the preferences of the incapacitated adult. Id. at 171. “A person who is incapacitated may nonetheless still be able to express an intelligent view as to his choice of guardian, which view is entitled to consideration by the court.” In re Guardianship of Macak, 377 N.J. Super. 167, 176 (App. Div. 2005).

On appeal from the court’s fee award of almost $33,000 to be paid equally by Barbara, Joan and Mark, the court found, first, that Sarah could not afford to pay the fee, as she had no assets and limited income. Second, the court concluded that it had the authority to direct payment of court-appointed counsel’s fee by the parties other than the incapacitated person:

In [awarding fees,], the [trial] court relied on Rule 4:86-4(e), which states, “The compensation of the attorney for the party seeking guardianship, appointed counsel, and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct.” See also In re Landry, 381 N.J. Super. 401, 410 (Ch. Div. 2005) (setting forth factors, including ability to pay and parties’ motivations, in allocating fee under Rule 4:86-4(e)). The [lower] court concluded that all three family members participated in the case; Barbara prompted the litigation; and Joan and Mark received an indirect benefit from counsel’s work, as she advocated a position in line with theirs. (emphasis added)

The case is attached here – Matter of S.H., An Alleged Incapacitated Person

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