The Role of Court Appointed Counsel In Guardianship Proceedings

by: Ethan Ordog

While an initial Guardianship consult provides a client a substantial amount of information pertaining to the process and requirements for such a filing, it is important to recognize and explain the role of Court Appointed Counsel.  Pursuant to Rule 4:86-4(b), the Court is obligated to appoint legal counsel to represent persons who are alleged to be mentally incapacitated.  At a minimum, the Court Appointed Attorney, in representing his or her client, has the responsibility of meeting with the alleged incapacitates person, make inquiries of persons having knowledge of the individual’s circumstances, including but not limited to family, friends and professionals, and reviewing, and if necessary obtaining, information related to the individual’s financial and medical background.

In many cases, upon investigation by Court Appointed Counsel, there is little question as to incapacity.  However, in certain cases, the issue of mental incapacity is a close question of fact and the Court Appointed Attorney may request that the Court require a further independent evaluation to assess the alleged incapacitated person’s capacity.  Additionally, the Court Appointed Attorney must also assess the propensity of the proposed Guardian to serve in such an appointed fiduciary capacity.  Specifically, while the next of kin of the individual have statutory priority in serving as Guardian, it is important for the Court Appointed Attorney to ensure that the appointed individual(s) shall make decisions, specifically related to the alleged incapacitated person’s medical, personal and financial needs, in his or her best interest.

In all cases, a Court Appointed Attorney must be aware of the obligations and responsibilities inherent in such a representation.  Specifically, the Court Appointed Attorney acts as an advocate for the interests of the alleged incapacitated person and should take an active role in the proceedings.  Furthermore, the Rules of Professional Conduct mandate that an attorney representing a disabled person maintain, as much as possible, a normal attorney-client relationship.  In fulfilling his or her obligation to the alleged incapacitated person, the Court Appointed Attorney seeks to preserve that client’s rights and interests, including the retention of decision making on specific matters, when appropriate.  As such, the Court Appointed Attorney should promote the alleged incapacitated person’s objectives and act with reasonable diligence in representing and advocating on the alleged incapacitated person’s behalf.  The Court Appointed Attorney shall be required to communicate with the alleged incapacitated person in order to see that the individual’s opinions and preferences can be disclosed to the Court, provided that such opinions or preferences are not patently absurd or pose an undue risk of harm.  In the Matter of M.R., 135 N.J. 155 (1994).

Even if incapacity is uncontested, an alleged incapacitated person may still have the ability to understand matters affecting his or her well being.  However, in the event that the alleged incapacitated person’s preferences and position is in conflict from what the Court Appointed Attorney believes may be in his or her client’s best interest, a Guardian Ad Litem may be appointed.  Such additional Counsel shall be given the task of assessing the individual and their needs and making independent recommendations to the Court.  The Guardian Ad Litem, who is generally also appointed by the Court, is independent of either party and simply seeks to ensure that the Court and all parties are fully apprised of the facts and circumstances surrounding a pending application for guardianship and the corresponding issues presented therein.

In fulfilling the role as Court Appointed Counsel, the following procedure is typical and should be anticipated and expected by an applicant for guardianship:

1.         Court Appointed Counsel shall typically reach out to the Petitioner, or their attorney, as the case may be, to obtain background information, including the pleadings, physicians certifications and other relevant documentation.

2.         Court Appointed Counsel shall interview the alleged incapacitated person so that his or her condition may be observed and reported.  Additionally, an examination of medical records, in addition to the required physician’s affidavits, shall be examined.  In certain cases, the Court Appointed Attorney may speak to the physicians about their opinions to better understand the functional ability of the alleged incapacitated person.

3.         Court Appointed Counsel shall interview the proposed Guardian and elicit the individual’s intentions for the future care of the alleged incapacitated person as well as that person’s qualification to serve as guardian.  The Court Appointed Counsel will most likely also communicate with other next of kin, as necessary, if questions exist or in further support of the proposed Guardian(s).

4.         Court Appointed Counsel shall also make reasonable inquiry concerning the alleged incapacitated person’s assets.  Specifically, the Court Appointed Counsel will identify assets not included in the guardianship pleadings and determine if there has been any issues in the management of such accounts previously or if outstanding issues which remain are dealt with appropriately.

5.         Court Appointed Counsel shall also determine whether the alleged incapacitated person has ever executed a power of attorney, advanced healthcare directive/living will and/or Last Will and Testament.

Following a review of all the applicable information, Court Appointed Counsel shall, in advance of the hearing date for the guardianship proceeding, provide a report to the Court, therein setting forth any consideration and findings made by the attorney, but more importantly setting forth his or her recommendation regarding a determination of capacity as well as the suitability of the proposed guardian.  Furthermore, based upon the particular facts surrounding the matter, Court Appointed Counsel shall set forth any less restrictive alternatives which might be available and what areas of decision making he or she believes should be retained by the alleged incapacitated person.  Additionally, based upon the assets/income attributable to the alleged incapacitated person, Court Appointed Counsel shall make a recommendation with respect to any surety bond which must be obtained prior to a guardian serving and/or having control of the alleged incapacitated person’s assets.  Additionally, Court Appointed Counsel shall also make any other suggestions regarding care and/or potential programs or benefits which the guardian may pursue on behalf of the alleged incapacitated person.  Typically, Court Appointed Counsel shall also submit a certification of services rendered with a request for approval from those assets attributable to the alleged incapacitated person.  Such fees and costs are usually separate and apart from any fees owed to Petitioner/Plaintiff’s attorney.  In the event that funds are not available, Court Appointed Counsel may simply provide representation without compensation, accept payments in installments until payment is received and/or request that those funds owed be fronted by the Petitioner or other individual related to the alleged incapacitated person.

Obviously, in recognizing the substantial determination which is sought by a guardianship filing, it is important to understand the process fully and completely.  Moreover, it must always be recognized that any individual involved be candid and open with Court Appointed Counsel, as well as any Court/ Surrogate staff, to ensure that information is available and presented in a manner which will allow for the establishment of a guardianship which accurately meets the alleged incapacitated person’s needs.