Memorandum
- ISSUE:
- How does the court appoint a family member or guardian over another family member who is handicapped or incompetent?
- LAW:
- If the court finds that a person is incapacitated, the court must then independently determine whom to appoint as guardian. In making this determination, the court should consider the recommendations of the court-appointed attorney and the wishes of the incapacitated person, if expressed. 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. In re Guardianship of Macak, 377 N.J. Super. 167, 176 (App. Div. 2005).
- It is the duty of the court appointed attorney to advocate for the client’s choice of guardian as well as to advocate the client’s position with respect to the underlying issue of whether the client is incapacitated. In re M.R., 135 N.J. 155, 176 (1994). If there is a significant issue as to the appropriate choice of guardian, or as to the underlying issue of incapacity, the court may appoint a guardian ad litem to advise the court as to the person’s best interests. at 176-78; R. 4:86-4(d).
- In civil actions or proceedings for the determination of incapacity or for the appointment of a guardian for an alleged incapacitated person, the trial of the issue of incapacity may be had without a jury pursuant to Rules Governing the Courts of the State of New Jersey, unless a trial by jury is demanded by the alleged incapacitated person or someone on his behalf. N.J. Stat. § 3B:12-24.
- 4:26-2(a) provides that a mentally incapacitated person shall be represented in an action by the guardian of either the person or the property. When a mentally incapacitated person is not represented by a guardian, paragraph (a) authorizes the court to appoint a guardian ad litem in accordance with paragraph (b) of the rule. A judicial determination of mental incapacity, however, must precede the appointment of a guardian. R. 4:86-1 to-8; N.J.S.A. § 3B:12-24 to-35. Paragraph (b) of R. 4:26-2 sets forth the initial procedure that follows when a person is alleged to be mentally incapacitated. R. 4:26-2(b) provides that the court may appoint a guardian ad litem for an alleged mentally incapacitated person on its own motion, R. 4:26-2(b)(4), or the motion of others, R. 4:26-2(b)(2) and (3). The word alleged before mentally incapacitated is not surplus language but is central to understanding the guardian ad litem’s function at that stage.
- ANALYSIS/CONCLUSION:
- Although the court has the ultimate power to appoint a guardian, the court must first find that the individual is incapacitated and/or handicap, and thus cannot make informed decisions on their own. The court then must independently determine whom to appoint as guardian. In making this determination, the court should consider the recommendations of the court-appointed attorney and the wishes of the incapacitated person, if expressed. If a family member is to be named a Guardian over the incapacitated individual, the individual’s attorney and the incapacitated individual him/herself (if they can) would advocate that the person being named Guardian would be in the best interest of the incapacitated individual.
- If there is a significant issue as to the appropriate choice of guardian, or as to the underlying issue of incapacity, the court may appoint a guardian ad litem to advise the court as to the person’s best interests.