Law Lessons from IN THE MATTER OF C.F.C., AN INCAPACITATED PERSON, App. Div., A-3168-11T3, May 9, 2013:
A guardian’s powers should only extend as far as necessary. The M.R. Court [In re M.R., 135 N.J. 155 (1994)] advised trial courts to consider limited, rather than general, guardians where only limited guardianship is required. Supra, 135 N.J. at 171. Our law was subsequently amended in 2005 to formalize the court’s duty to consider limited guardianships. L. 2005, c. 304, § 12 (effective Jan. 11, 2006) (codified at N.J.S.A. 3B:12-24.1).
The court shall appoint counsel for an alleged incapacitated person. R. 4:86-4(b). Among other duties, counsel shall interview the incapacitated adult; inquire of persons knowledgeable of his or her circumstances, physical and mental state; and provide a report to the court making recommendations concerning the issue of incapacity and a delineation of those areas where the incapacitated adult is capable of decision-making. Ibid. The report shall also state whether the incapacitated person “has expressed dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court.” Ibid.
We recognize that Rule 4:86-4 addresses the role of counsel in the context of an application for the initial appointment of guardian for an “alleged incapacitated person,” as opposed to the appointment of a testamentary guardian for an adult previously deemed incapacitated. However, we see no difference in the need for counsel. Even if the issue of the nature and extent of the person’s incapacity is uncontested, the confirmation of a testamentary guardian, or the appointment of another, implicates fundamental interests of the incapacitated adult that warrant legal representation. “An adversarial role for the attorney recognizes that even if the client’s incompetency is uncontested, the client may want to contest other issues, such as the identity of the guardian or, as here, the client’s place of residence.” M.R., supra, 135 N.J. at 176; see also Judiciary-Surrogates Liaison Committee, Guidelines for Court-Appointed Attorneys in Guardianship Matters 3 (May 2005) (stating that even if incapacity is uncontested, appointed counsel is obliged to represent incapacitated person’s opinions and preferences “for example, about the identity of the proposed guardian or where they want to live”).
We construe our Court Rule as requiring representation in a proceeding to confirm appointment of a testamentary guardian under N.J.S.A. 3B:12-30.
The role of a counsel for an incapacitated person is distinct from that of a guardian ad litem. Compare R. 4:86-4(d) (setting forth duties of guardian ad litem), with R. 4:86-4(b) (describing duties of counsel for incapacitated adult). As the M.R. Court explained:
[T]he 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.
[M.R., supra, 135 N.J. 173-74.]
As a result of their different roles, “the attorney and guardian ad litem may take different positions, with the attorney advocating a result consistent with the incompetent’s preferences and the guardian urging a result that is different but in the incompetent’s best interests.” Id. at 175; see also In re Mason, 305 N.J. Super. 120, 127 (Ch. Div. 1997) (“Court appointed counsel is an independent legal advocate for the alleged incompetent and takes an active part in the hearings and proceedings, while the GAL is an independent fact finder and an investigator for the court.”).
Their approaches differ as well. “When interviewing interested parties, the attorney for an incompetent should proceed through counsel, but often a guardian ad litem may communicate directly with other parties.” M.R., supra, 135 N.J. at 175. The attorney for the incompetent must do more than “merely file a report,” but “should zealously advocate the client’s cause.” Ibid.
The court shall also 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.” Macak, supra, 377 N.J. Super. at 176. The court must consider as distinct questions, who will serve as guardian and where the incapacitated adult shall live. “Even without the interrelationship between the choice of guardian and  place of residence, the choice of residence involves numerous other issues, including those pertaining to the availability of adequate educational, employment and recreational activities.” M.R., supra, 135 N.J. at 172 (suggesting that an incapacitated adult conceivably could choose to live someplace other than with the guardian); see also Queiro, supra, 374 N.J. Super. at 304 (noting that court interviewed incapacitated person to determine whether she had a preference). In M.R., the Court vindicated the right of developmentally disabled persons to determine where they will live, if they are capable of doing so.
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