In general, an incapacitated person is to be represented in any litigation by a guardian, or “if no such guardian has been appointed or a conflict of interest exists between a guardian and ward or for other good cause, by a guardian ad litem appointed by the Court.” R. 4:26-2(a); Village Apartments v. Novack, 383 N.J. Super. 574, 579 (App. Div. 2006). A guardian ad litem may be appointed by petition, on a party’s motion or on the court’s own motion. R. 4:26-2(b). The function of a guardian ad litem is “generally to insure the protection of the rights and interests of a litigant” who is unable to do so himself. In re Commitment of S.W., 158 N.J. Super. 22, 26 (App. Div. 1978). Once a guardian ad litem is appointed for an incapacitated person in a probate litigation, what role will that guardian ad litem will play?
In the context of a guardianship proceeding, In re M.R., 135 N.J. 155 (1994) the New Jersey Supreme Court explained that,
“the role of the representative attorney is entirely different from that of a guardian ad litem. The representative attorney is a zealous advocate for the wishes of the client. The guardian ad litem evaluates for himself or herself what is in the best interests of his or her client-ward and then represent[s] the client-ward in accordance with that judgment.”
Id. at 173 (citing Judiciary Surrogates Liaison Committee, Guidelines for Attorneys, at 7). M.R. went on to state,
In sum, several reasons support the distinction between an attorney and a guardian ad litem for an incompetent. First, the attorney and guardian ad litem may take different positions,… Second, the attorney and guardian may differ in their approaches. When interviewing interested parties, the attorney for an [incapacitated person] should proceed through counsel, but often a guardian ad litem may communicate directly with other parties. Finally, a guardian may merely file a report with the court but the attorney should zealously advocate the client’s cause.
Id. at 175.
As set forth in In re Mason, 305 N.J. Super. 120, 126 (Ch. Div. 1997),
Court-appointed counsel is an independent legal advocate for the alleged [incapacitated person] and takes an active part in the hearings and proceedings, while the GAL is an independent fact finder and an investigator for the court. The court-appointed attorney… thus subjectively represents the client’s intentions, while the GAL objectively evaluates the best interests of the alleged [incapacitated person].
Thus, our case law generally envisions a more neutral role for a guardian ad litem, as distinguished from a court-appointed guardian. Indeed, Comment 3 of R. 4:26-2(b)(1) notes that the guardian ad litem is charged with protecting the ward’s best interests, rather than taking substantive actions on the ward’s behalf:
The function of the guardian ad litem is to protect the interests of his ward in respect of litigation. Taking substantive actions on behalf of the ward is the function of the guardian of the person or property of the ward.
Pressler, Current N.J. Court Rules, Comment 3 on R. 4:26-2 at 1670 (citing In re Grady, 170 N.J. Super. 98 (Ch. Div. 1979), modified, 85 N.J. 235 (1981); Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 153 (App. Div. 2002)).
Nonetheless, in the aforecited Grady decision (addressing parents’ application seeking sterilization of their incapacitated daughter) the court noted that the guardian ad litem “must have full opportunity to meet with the [incapacitated] person, to present proofs and cross-examine witnesses at the hearing, and to represent zealously the interests of his ward in other appropriate ways.” Grady, 85 N.J. at 264.
The “analogous context of child custody” has been referenced by Chancery Division courts to further explain the differences between the roles of guardian and guardian ad litem. “The respective positions serve the same function in the [Family Part and the] Probate Part in the context of competency matters.” Mason, 305 N.J. Super. at 126. Thus, the M.R. court quoted the Official Comment to Rules 5:8A and 5:8A to explain these differences:
A court-appointed counsel’s services are to the child. Counsel acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed.
A court-appointed guardian ad litem’s services are to the court on behalf of the child. The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed….
M.R., 135 N.J. at 173. See also In re Mason, supra; D.Y.F.S. v. Robert M., 347 N.J. Super. 44, 47, 50 (App. Div. 2002) (quoting In re Adoption by E.T., 302 N.J. Super. 533, 539 (App. Div. 1997)). The Family Part court rule accordingly provides,
The services rendered by a guardian ad litem shall be to the court on behalf of the child…. The guardian ad litem shall file a written report with the court setting forth findings and recommendations, and the basis thereof, and shall be available to testify and shall be subject to cross-examination thereon. In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:
1.Interviewing the children and parties.
2.Interviewing other persons possessing relevant information.
3.Obtaining relevant documentary evidence.
4.Conferring with counsel for the parties.
5.Conferring with the court, on notice to counsel.
6.Obtaining the assistance of independent experts, on leave of court.
7.Obtaining the assistance of a lawyer for the child….
8.Such other matters as the guardian ad litem may request, on leave of court.
Just as the roles of the court appointed attorney and the guardian ad litem differ, there approaches also differ. See In re C.F.C., 2013 N.J. Super. Unpub. LEXIS 1104 (App. Div. May 9, 2013). However, in the context of probate litigation, once a guardian ad litem is appointed, in the absence of specific parameters in the order of appointment, the particular responsibilities of that guardian ad litem are less clear.
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