Trial Court Decisions Concerning The Choice Of An Appropriate Guardian Most Often Upheld On Appeal

This is the latest decision in the long-running legal drama involving Lillian Glasser which has spawned litigation in two states, Texas and New Jersey, 34 days of trial in New Jersey concerning the capacity of Mrs. Glasser, collateral litigation involving the choice of an appropriate guardian, the validity of Mrs. Glasser’s will, attorneys fees awards, and numerous appeals. And it is my understanding that the litigants may appeal yet again, and the case may be headed to the New Jersey Supreme Court.

After a 34 day trial, the probate judge in In the Matter of Lillian Glasser, Docket No. A-0500-o8T3 (App.Div., July 21, 2011) determined that Mrs. Glasser was incapacitated, but concluded that none of her family members should act as the guardian of her person. In that regard, the judge found that her daughter Suzanne exercised undue influence over Mrs. Glasser, and that she violated her fiduciary duty in exercising Mrs. Glasser’s power of attorney (POA). The probate judge also found that her son Mark, although he primarily had his mother’s best interests at heart, also acted in ways that were disruptive to his mother’s medical care and, at times, counter-productive to her interests. Therefore, the judge appointed an attorney as guardian of the person for Mrs. Glasser, and a financial institution was appointed as guardian of the property by consent of all parties. The judge also found that Mrs. Glasser’s latest will, POA and health care proxy were the result of Suzanne’s undue influence, and therefore invalid, and that Suzanne acted improperly in seizing her mother’s assets and transferring them to a family limited partnership (FLP) which Suzanne had her mother create in Texas. According to the Court, the FLP was also the result of Suzanne’s undue influence, and invalid. Although over one million dollars in attorneys fees were incurred in litigating the various lawsuits involving Mrs. Glasser, the Court denied Suzanne’s application for counsel fees and costs, ordering her to reimburse the estate for monies she took form the estate and spent on her own counsel fees. The Court awarded some counsel fees to Mark, but not all of the fees he sought. All parties appealed.

The Superior Court of New Jersey, Appellate Division, affirmed in all respects. Among the interesting decisions made, the appeals court held that a court may authorize a guardian rather than the health care proxy appointed by the ward,  when competent, to make health care decisions for the ward. The Court refused to second-guess the lower court’s credibility determinations, finding that:

Such factual findings should not be disturbed unless they are so manifestly unsupported or inconsistent with the competent, reasonable credible evidence so as to offend the interests of justice.

The appeals court refused to reverse the lower court’s rulings on the various attorneys fee awards, finding that an appeals court may not “overturn a decision to award to withhold counsel fees, absent ‘a clear abuse of discretion.’” [Citations Omitted] The court also upheld the probate judge’s decision not to appoint one of Mrs. Glasser’s grandchildren as her guardian, given “the unfortunate history of family strife” in the case.

The case is annexed here – Matter of Lillian Glasser