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The Guardianship - Clarifying the Role of the Court Appointed Attorney and Guardian Ad Litem

Clarifying the Role of the Court Appointed Attorney and Guardian Ad Litem

Published: April 20, 2011 in New Jersey, Cite 204 N.J.L.J. 262

By: Christopher DeFilippis

Witman Stadtmauer, P.A.

26 Columbia Turnpike

Florham Park, NJ 07932

(973) 822-0220

The role of the court-appointed attorney is often an uncertain one. This is especially true in guardianship matters. It can be difficult for court-appointed attorneys in guardianship matters, who often deal with challenging family and quality of life circumstances, to remember that they are advocates for their clients and their client's position and not advocates for what they think is best for the client. The appropriate handling of these matters on the part of the court-appointed attorney is becoming exceedingly important as the unfortunate reality is that, according to Alzheimer's Disease International (a group representing Alzheimer's groups across the globe), the number of dementia cases continues to grow every year and is expected to grow for the foreseeable future as the population ages.

The leading case on guardianship involving allegedly mentally incapacitated adults is In the Matter of M.R. 135 N.J. 155 (1994). The M.R. case dealt with a developmentally disabled, twenty-one-year-old woman with Down's Syndrome and the battle between her mother and father for custody over her. The primary issue of the M.R. case was whether the mother or father had the burden of proving by clear and convincing evidence that M.R. lacked specific capacity to determine where she wanted to live.

In reaching its decision, the court in M.R. clearly distinguished the role of the court-appointed attorney in guardianship matters from that of the role of guardian ad litem. Prior to the M.R. decision there was some uncertainty with respect to these roles. It was not clear whether appointed counsel for an alleged incapacitated person was to zealously advocate for the alleged incapacitated's position or to simply inform the court of his or her perception of what was best for the alleged incapacitated person. The M.R. Court sought to make the difference between the two roles clear.

The M.R. Court cited New Jersey public policy derived from the State Constitution, legislative acts, regulations and court decisions in stating that the self-determination of all citizens, including those with developmental disabilities, should be protected. In addition the court cited the Rules of Professional Conduct (RPC) which mandate in RPC 1.14(a) that, "When a client's capacity to make adequately considered decisions in connection with the representation is diminished... the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." The RPC further dictate that an attorney should "abide by client's decisions concerning the objectives of representation", RPC 1.2(a) and "act with reasonable diligence...in representing the client," RPC 1.3.

The M.R. court, in drawing a distinction between roles, stated that the role of the court-appointed attorney is to zealously advocate for the alleged incapacitated's objectives though not extending to those that are "patently absurd or that pose an undue risk of harm to the client." The guardian ad litem's role, however, is to determine what action is in the best interests of the allegedly incapacitated person and advocate for that position. The guardian ad litem serves almost as an independent finder of fact and does not attempt to advocate for whatever the allegedly incapacitated person's preferences are.

It can be human nature for a court-appointed attorney to consider his or her client's best interests. However, University of Pittsburgh School of Law Professor Lawrence A. Frolick may have best expressed the danger in the court-appointed attorney delving into the role best left to the guardian ad litem when he stated in his article, Plenary Guardianship: An Analysis, A Critique and A Proposal for Reform, "Advocacy that is diluted by excessive concern for the client's best interests would raise troubling questions for attorneys in an adversarial system... if counsel has already concluded that his client needs 'help' he is more likely to provide only procedural formality, rather than vigorous representation."

The dichotomy of the court appointed attorney and guardian ad litem played itself out in a matter in which I was involved. I was appointed as counsel for John, an allegedly incapacitated 80 year old man, in a guardianship case. John was married to Mary, who had already been adjudicated incapacitated a year earlier with guardianship letters being issued to John and his daughter Eva. Eva had essentially served as her parents' primary care taker and had sacrificed her career ambitions to assist them. John and Mary had one other daughter, Ann, who had a poor relationship with her sister Eva and maintained a strained relationship with her parents.

John and Mary spent much of 2008 and 2009 with battling various illnesses and enduring major surgeries. Following their surgeries, the couple was released from the hospital to an assisted living facility. It was at this time that John and Eva obtained guardianship over Mary. As the couple was adamant about living at home, John and Mary returned to their marital home to live with a full-time caretaker in June of 2009 in spite of Eva's reservations about this living arrangement.

Things at home unraveled rather quickly as the couple did not adjust well to having a relative stranger in their house and the arrangement deteriorated. The caretaker eventually quit in August of 2009. Eva, based on the certifications of two doctors indicating that John was incapacitated, decided to move her parents to an assisted living facility and petitioned for guardianship over the person and property of John. I was then appointed as John's counsel.

I found John to be extremely agitated and emotional over his placement in an assisted living facility. He vehemently opposed his daughter becoming his guardian and indicated he thought she was after his money. During parts of our conversations he was lucid and other times he would lose his train of thought and ramble. His only directives were to oppose the guardianship and return to his marital home with his wife. Based upon the M.R. case, as long as his demands were not patently absurd (John found a doctor who prepared a report indicating that John was competent), I had an obligation to advocate for what he wanted even though I did not believe it to be in his best interests. I found Eva to be quite sincere in her concern for her parents and their safety. Based on the experiences with her parents' primary and secondary live-in care givers, she did not believe it was practical to have them return home. Based upon my findings, I agreed with her, but had to advocate against her as her father's desires could not be discounted as being patently absurd.

John and Mary's primary caretaker painted a difficult and often dangerous picture of the living circumstances in the house. The caretaker indicated that both spouses would scream at her and call her all sorts of terrible names and that Mary believed she could do chores and other tasks that she was told not to do. They would berate her and tell her that she could only shower and wash her clothes once a week. The caretaker would take Mary and John to the store where they would shoplift things or switch price tags. On one occasion, the caretaker indicated that Mary attempted to hit her for simply taking a walk. All other caregivers from the same service who witnessed Mary and John's behavior, refused to work for them.

Further complicating the matter was that John's attending physician submitted a certification indicating that John was, indeed competent and was capable of governing his personal and financial affairs. This report directly contradicted the certifications submitted by Eva's doctors.

As the court-appointed attorney for John in this matter, it was my primary obligation to protect his rights, which include the right to make decisions regarding specific financial or personal matters. In this instance, I made a motion to the court to have a guardian ad-litem appointed under Rule 4:86-4(d), because I did believe there was a strong possibility that there was a conflict between John's desires and his best interests, making such an appointment necessary. Ultimately an independent court appointed psychiatrist found John to be mentally competent and Eva withdrew the petition. John and Mary returned to their marital home with the promise that they would treat another caretaker in a better fashion. I have not had contact with them since.

While the distinction between a court-appointed attorney's role and a guardian ad litem's role seems clear in theory, cases like John's can be extremely difficult in practice. Guardianship matters can often be emotional and divisive and it is important for the court appointed counsel to act within the scope of their representation and advocate for their client leaving the determination of what is best for the client to the appropriate representative.

Clearly, M.R. is not a new law. However, the scope of its application will continue to grow in the future as the number of people contracting dementia continues to climb. An astounding 35 million people in the world suffer from dementia today, and Alzheimer's International predicts this number will increase to 66 million by 2030 and 115 million by 2050. One can only surmise that there will be a direct correlation between the increases in dementia cases and an increase in the number of guardianship petitions filed in the future.

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