RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3572-19
APPROVED FOR PUBLICATION
IN THE MATTER OF THE June 8, 2021
CIVIL COMMITMENT OF
M.F. APPELLATE DIVISION
_______________________
Argued December 2, 2020 – Decided June 8, 2021
Before Judges Alvarez, Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Law Division, Somerset County, Docket No. SOCC-
000001-06.
Thomas G. Hand, Assistant Deputy Public Defender,
argued the cause for appellant M.F. (Joseph E.
Krakora, Public Defender, attorney; Thomas G. Hand
on the briefs).
Anthony J. Serra argued the cause for respondent W.
F. (Serra Law Group, attorneys; Anthony J. Serra on
the brief).
The opinion of the court was delivered by
MITTERHOFF, J.A.D.
M.F.'s assigned counsel appeals from a February 19, 2020 order granting
M.F.'s legal guardian's application to intervene in M.F.'s involuntary
commitment proceedings. 1 On appeal, M.F.'s counsel argues the guardian has
not met the criteria for intervention under Rule 4:33-1 or Rule 4:33-2, and that
the plain language of N.J.S.A. 30:4-27.12 precludes intervention as a matter of
law. This case presents the issue of who is entitled to express a position on
whether M.F., a gravely disabled patient involuntarily committed to a
psychiatric hospital, continues to meet the statutory definition of
dangerousness. The issue is complicated by the fact that M.F. is unable to
express his preference due to his debilitating mental illness.
Based upon the record and in light of the applicable law, we affirm the
judge's order allowing the legal guardian to intervene, not to usurp assigned
counsel's role, but to fulfill his separate duties to safeguard the welfare of his
ward. Because M.F.'s views are not easily or readily ascertainable, however,
and considering the sharp divergence of the views of the legal guardian and
assigned counsel, we direct that on remand the judge appoint an attorney to
serve as guardian ad litem for M.F., to conduct an investigation, and report his
or her findings to the court.
We derive a brief history of the onset and progression of M.F.'s mental
illness and his ensuing long-term institutionalization from documents
1
The county adjuster took no position and is not participating in this appeal.
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2
contained in the record. 2 M.F. is a fifty-nine-year-old male who has been
committed at Greystone Park Psychiatric Hospital in Morris Plains since
January 25, 2012. A June 9, 2006 consultation report by Ross J. Baldessarini,
M.D., indicates that M.F., then forty-five years old, had been institutionalized
at Ancora State Psychiatric Hospital for three years, "following prolonged and
slowly more disabling mental illness that started when he started college in
[Pennsylvania] at age [eighteen]."
M.F. exhibited no early warning signs of mental illness before his senior
year in high school. To the contrary, prior to his senior year in high school,
M.F. "did very well academically, socially, and athletically, . . . was an A -
student and National Merit Scholar, and was accepted by several prominent
colleges, including Princeton," although he chose to matriculate at Villanova.
In his senior year of high school, in what Dr. Baldessarini describes as a
possible prodrome, M.F. began "behaving oddly and wanting to give away his
belongings." More acute illness erupted in his first year at Villanova,
manifested by "grandiose and religious delusions," "probable auditory
2
We recognize that the judge sustained an objection to the admission of the
hearsay medical records to support the guardian's motion for reconsideration.
We do not rely on them as evidential support of our decision whether the
guardian may intervene. Rather, we discuss M.F.'s documented medical
history merely to add context to the underlying dispute and the factual basis
for some of the guardian's concerns.
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3
hallucinations," and "very occasional episodes of explosive excitement with
aggressive threats or actions" that persist to date. In his late twenties through
his thirties, M.F. resided in group homes for psychiatric patients. He was
transferred to long-term psychiatric hospitalization, however, after "a brief
period of wandering and living in the streets in 2003." 3
The doctor's impression at that time, based on history, medical records,
and examination, was as follows:
This patient is suffering from a chronic and slowly
progressive form of severe mental illness. Despite
suggestive "manic" elements, he does not have a
history of sustained elevations or of cyclic major
changes in mood, and the previously suggested
formulation of bipolar schizoaffective disorder seems
less likely than a hebephrenic (disorganized) form of
schizophrenia, though very distinct from other forms,
and perhaps the least well studied therapeutically. 4
In 2006, M.F. was adjudicated an incapacitated person, and M.F.'s
brother, W.F., was appointed as his general co-guardian.5 Although there are
no documents in the record evidencing M.F.'s initial involuntary commitment
3
A June 17, 2019 Greystone commitment review hearing report also notes as
part of M.F.'s history that "[t]he patient eloped from a group home, [and] was
found naked, eating out of dumpsters."
4
The remainder of the report contains recommended medication regimens.
5
M.F.'s mother is the co-guardian.
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4
hearing, we infer that it occurred from the evidence in the record of the
periodic reviews that followed.
We begin with a brief review of the relevant statutes and court rules,
which guide our analysis. "A patient who is involuntarily committed to
treatment . . . shall receive a court hearing with respect to the issue of
continued need for involuntary commitment within 20 days from initial
commitment . . . ." N.J.S.A. 30:4-27.12(a). Normally, "the assigned county
counsel is responsible for presenting the case for the patient's involuntary
commitment to the court, unless the county adjuster is licensed to practice law
in this State, in which case the county adjuster shall present the case . . . ."
N.J.S.A. 30:4-27.12(b). The patient has the right to be represented by an
attorney, N.J.S.A. 30:4-27.11(c), must "have counsel present at the hearing[,]
and shall not be permitted to appear at the hearing without counsel." N.J.S.A.
30:4-27.12(d). "The patient, through counsel, shall have the right to present
evidence and to cross-examine witnesses." R. 4:74-7(e).
Certain evidence must be presented at the hearing. The application for
commitment shall be supported by the "testimony of a psychiatrist on the
patient's treatment team who has conducted a personal examination of the
patient as close to the court hearing date as possible, but in no event more than
five calendar days prior to the court hearing." Ibid. The court may also order
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5
any licensed psychologist who has examined the patient to appear and testify.
Ibid.
"The court shall enter an order authorizing involuntary commitment of
the patient . . . if it finds, by clear and convincing evidence presented at the
hearing that the patient is in need of continued involuntary commitment to
treatment" because the "patient is mentally ill" and the "mental illness causes
the patient to be dangerous to self or dangerous to others or property." R.
4:74-7(f)(1). Of relevance to this appeal:
“Dangerous to self” means that by reason of mental
illness the person has threatened or attempted suicide
or serious bodily harm, or has behaved in such a
manner as to indicate that the person is unable to
satisfy his need for nourishment, essential medical
care or shelter, so that it is probable that substantial
bodily injury, serious physical harm, or death will
result within the reasonably foreseeable future;
however, no person shall be deemed to be unable to
satisfy his need for nourishment, essential medical
care, or shelter if he is able to satisfy such needs with
the supervision and assistance of others who are
willing and available. This determination shall take
into account a person’s history, recent behavior, and
any recent act, threat, or serious psychiatric
deterioration.
[N.J.S.A. 30:4-27.2(h) (emphasis added).]
In so finding, the court must determine that "less restrictive alternative
services are not appropriate or available to meet the patient's mental health
care needs." R. 4:74-7(f)(1).
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6
The court must then conduct "periodic reviews of the commitment." R.
4:74-7(f)(2). The court is required to conduct review hearings three times in
the first year of commitment, followed by at least one review annually "if the
patient is not sooner discharged." Ibid. Each review hearing follows the same
procedure established for the initial involuntary commitment hearing, and if
the court determines that involuntary commitment shall continue, "it shall
execute a new order." Ibid. "If the court concludes at the review hearing that
the evidence does not warrant continued commitment to treatment, it shall
order that the patient be discharged." R. 4:74-7(h)(1).
"If the [S]tate fails to establish each element essential to authorize
further restrictions on the patient's liberty, the general rule requires discharge
upon completion of discharge plans within forty-eight hours." In re
Commitment of M.C., 385 N.J. Super. 151, 160 (App. Div. 2006) (citing
N.J.S.A. 30:4-27.15(b)). However, "[t]here are two narrow exceptions to the
general rule." Ibid.
The first exception, not applicable here, is release subject to conditions.
Ibid. The second exception to the general rule is an "Order of Conditional
Extension Pending Placement," or CEPP. R. 4:74-7(h)(2). Pursuant to Rule
4:74-7(h)(2), "if a patient otherwise entitled to discharge . . . cannot be
immediately discharged due to the unavailability of an appropriate placement,
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7
the court shall enter an order conditionally extending the patient's
hospitalization and scheduling a placement review hearing within [sixty] days
thereafter." Our Supreme Court first approved the "hybrid status" then
referred to as "discharged pending placement," and now known as CEPP, in
the case In re S.L., 94 N.J. 128, 133, 142 (1983). There, "the Court held that
the [S]tate may continue to confine a person who is unable to 'survive
independently outside the institution without some care and supervision.'"
M.C., 385 N.J. Super. at 161 (quoting S.L., 94 N.J. at 132, 137, 139-40).
Although Rule 4:74-7(h)(2) "refers to circumstances in which 'a patient
cannot be immediately discharged due to the unavailability of an appropriate
placement,' [the Appellate Division] has looked to S.L. and limited the scope
of this exception to those who are 'incapable of survival on their own.'" Id. at
162 (quoting In re Commitment of G.G., 272 N.J. Super. 597, 604-05 (App.
Div. 1994)). "Thus, CEPP is not a fallback option when the [S]tate cannot
implement a discharge plan within forty-eight hours, and CEPP is not a means
through which the judge may delay a conditional release." Ibid. An order
placing a patient on CEPP must be supported by evidence that he or she is
incapable of surviving discharge, not "subjective judgments about whether a
patient who is entitled to discharge has desirable or optimal living
arrangements and family relationships." Id. at 163-64.
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8
In this case, it is undisputed that M.F. is incapable of survival on his
own, and that he requires and will require a significant amount of care on an
inpatient basis, including close monitoring of his medication and blood levels.
It appears highly unlikely he will be "discharged" in a literal sense. Thus,
there is no question he satisfies the statutory first prong of the "danger to self"
standard applicable to the gravely disabled. Unfortunately, due to his serious
condition, M.F. himself is unable to express a preference whether to remain at
Greystone or step down to another type of facility, such as a nursing home or
group home. M.F.'s counsel argues that M.F. no longer meets the statutory
definition of dangerousness and that due process requires that he be discharged
and placed in an alternative setting. M.F.'s brother and legal guardian
successfully sought intervention to argue that M.F.'s placement at Greystone
should continue because of the absence of a less restrictive setting that is able
to meet M.F's needs.
On June 12, 2019, Judge Louis Mellinger conducted a commitment
review hearing for M.F. M.F.'s treating psychiatrist at Greystone, Dr. Svetlana
Volskaya, testified that M.F. was "unable to take care of himself" and that the
guardian "is in total agreement . . . that [Greystone is] the least restrictive
place" for him. The doctor offered no discharge plan because, in her opinion,
he was not appropriate for a group home setting and he was too young to be in
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a nursing home. She believed he benefitted from activities at Greystone and
that it was, for the time being, the least restrictive placement for M.F. No
other witnesses testified at the hearing.
The judge concluded that although from a "humanitarian" point of view,
Greystone may be the least restrictive setting for M.F., from a due process
perspective the county adjuster failed to demonstrate by clear and convincing
evidence that M.F. presented a danger to himself, others, or property, N.J.S.A.
30:4-27.2(m). Accordingly, the judge placed M.F. on CEPP status. See R.
4:74-7(h)(2). The judge also ordered that W.F. appear at the next hearing on
October 2, 2019, to review discharge planning.
Before that hearing could take place, the guardian moved for
reconsideration of the June 12, 2019 order that placed M.F. on CEPP status.
The guardian provided a certification which stated, in part, that it was in M.F.'s
"best interest that he remain committed at Greystone and that releasing him to
a different, less restrictive facility, would be detrimental to his well-being."
On July 10, 2019, the judge heard arguments on the motion for
reconsideration. M.F.'s attorney argued that the guardian did not have
standing to file the motion because he was not a party in the matter. W.F.
countered that, as the legal guardian for his brother, he was an interested party
in the case. The judge agreed that "the guardian does have standing to bring a
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motion" because the "guardian stands absolutely in the shoes of the patient."
Despite this pronouncement, the judge carried the matter for two weeks to
allow Greystone to determine whether it would re-screen M.F. for re-
commitment, thus obviating the need to decide the motion for reconsideration.
On July 24, 2019, the judge again heard arguments on the motion for
reconsideration. The guardian advised the judge that recommitment was
abandoned in favor of pursuing reconsideration of the June 12, 2019 order. At
this point, the judge observed that:
I don't know that the guardian has standing . . . to be
heard with regard to whether the patient should be
moved to CEPP status or kept in committed status.
That's not a province of the guardian. The province of
the guardian is . . . to protect the patient's interest as to
perhaps where they're going to be placed, or as to
treatment that's going to be resolved beyond the
hospital, or even issues involving the patient while at
the hospital, but not as to whether the patient is in
committed status or not. The guardian doesn't have
input or expert testimony as to whether the patient is
in committed status. That's the province of the
doctors and other experts.
So, I don’t know that the guardian [has]
standing
....
Unfortunately, the judge never definitively resolved the issue of standing until
February 19, 2020.
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Meanwhile, M.F. remained on CEPP status between June and December
2019. While on CEPP status, M.F. was considered for, and ultimately rejected
from, A-Plus Group Home because they could not accommodate his level of
care. The record does not reflect whether other placements were considered in
this time frame.
The judge, however, tacitly approved the guardian's intervention on
December 11, 2019. He allowed "the guardian to participate through counsel
in any further civil commitment hearings," thus permitting "the guardian to
aver the guardian's position, either through evidence, witnesses, [or] closing
statements." The judge ordered that M.F. could not be discharged from CEPP
status without further application to the court. The judge set a February 19,
2020 hearing date.
In the interim, on December 26, 2019, M.F. was involved in an incident
where he struck another patient at Greystone in the face and, consequently,
Greystone filed for M.F.'s recommitment. A commitment review hearing was
ordered to take place on January 8, 2020.
At that hearing, Dr. Volskaya testified that M.F. remained a danger to
others based on the assault. She also testified that M.F. was a danger to
himself because of his high creatinine levels, which require close monitoring.
Dr. Volskaya indicated that in October she reduced M.F.'s lithium dosage
A-3572-19
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because of his elevated creatinine levels. Dr. Volskaya opined that the
December 26, 2019 incident was causally related to the dosage change. The
guardian's attorney was permitted to cross-examine Dr. Volskaya over M.F.'s
assigned counsel's objection. The judge overruled the objection on the
grounds that he previously found "the guardian stands in the shoes of the
patient" and has an interest in the welfare of the patient. The judge ultimately
determined that continuing commitment was necessary because the county
adjuster proved, by clear and convincing evidence, that M.F. was a danger to
others based on the short period of time since the December 26, 2019
incident.6
On February 19, 2020, the judge heard arguments on M.F.'s assigned
counsel's motion to bar the participation of the guardian and the guardian's
cross-motion to participate. The judge held that the guardian established the
criteria for intervention under Rule 4:33-1 and was permitted to participate in
the proceedings:
the criteria has been met for intervention. The
guardian stands in the shoes of the ward and is
charged with the duties and responsibilities under the
guardian statute; (2) has the right under the guardian
statute and duty to protect the best interest and well-
6
The January 8, 2020 order is the subject of an appeal pending under Docket
No. A-2737-19, also decided today.
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13
being of the ward, and medically also under the
guardian statute; (3) the guardian asserts that the
ward's interest is not adequately protected because he
disagrees with the public defender and asserts that . . .
Greystone is the best and safest environment for the
ward and asserts the potential danger with regard to
the [neuroleptic malignant] syndrome, 7 and the ward
has only known Greystone since 2012 – these are all
legitimate concerns and empowered under the
guardian statute; and (4) a timely application to
intervene must be made.
The judge issued an accompanying written order mirroring his oral decision.
On appeal, M.F.'s assigned counsel raises the following issues for our
consideration:
POINT I
THE TRIAL COURT'S DECISION TO ALLOW
M.F.'S GUARDIAN TO INTERVENE IN THIS
MATTER MUST BE REVERSED BECAUSE M.F.'S
GUARDIAN FAILED TO SATISFY THE
REQUIREMENTS FOR INTERVENTION AS
REQUIRED BY THE COURT RULES, THE
CONSTITUTION[,] AND CASE LAW[,] AND HIS
INTERVENTION HAS AND WILL CONTINUE TO
HARM M.F.
A. THE TRIAL COURT ERRED AS A
MATTER OF LAW WHEN IT MISAPPLIED
7
According to the National Institute of Neurological Disorders and Stroke,
neuroleptic malignant syndrome "is a life-threatening, neurological disorder
most often caused by an adverse reaction to neuroleptic or antipsychotic
drugs." Neuroleptic Malignant Syndrome Info. Page, Nat'l Inst. of Health,
https://www.ninds.nih.gov/Disorders/All-Disorders/Neuroleptic-Malignant-
Syndrome-Information-Page.
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THE COURT RULES TO ALLOW THE
GUARDIAN TO INTERVENE IN THIS CIVIL
COMMITMENT AND PROSECUTE THE
ACTION FOR CIVIL COMMITMENT, A
POWER WHICH ONLY RESIDES WITH THE
STATE.
B. THE TRIAL COURT ERRED AS A
MATTER OF LAW WHEN IT IGNORED THE
CLEAR AND UNAMBIGUOUS LANGUAGE
OF N.J.S.A. 30:4-27.12 TO GRANT THE
GUARDIAN THE AUTHORITY TO
INTERVENE IN THE CIVIL COMMITMENT
PROCEEDING AND CO-PROSECUTE
COMMITMENT OF HIS WARD BY
PRESENTATION OF HIS OWN WITNESSES.
C. THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT GRANTED THE
GUARDIAN PERMISSION TO INTERVENE
IN THIS MATTER AND THE GUARDIAN'S
INTERVENTION HAS AND WILL
CONTINUE TO HARM M.F.
We reject M.F.'s argument that N.J.S.A. 30:4-27.12 categorically
precludes the guardian from intervening in his ward's commitment hearing.
"When construing a statute, our primary goal is to discern the meaning and
intent of the Legislature." State v. Gandhi, 201 N.J. 161, 176 (2010). "To
determine that intent, 'we look first to the plain language of the statute, seeking
further guidance only to the extent that the Legislature's intent cannot be
derived from the words that it has chosen.'" McGovern v. Rutgers, 211 N.J.
94, 108 (2012) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553
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15
(2009)). When a statute's plain language is clear, our interpretative task is
complete. In re Kollman, 210 N.J. 557, 568 (2012) (citing N.J. Ass'n of Sch.
Adm'rs v. Schundler, 211 N.J. 535, 549 (2012)).
N.J.S.A. 30:4-27.12 reads, in part, that:
b. Except as provided in subsection c of this section,
the assigned county counsel is responsible for
presenting the case for the patient’s involuntary
commitment to the court, unless the county adjuster is
licensed to practice law in this State, in which case the
county adjuster shall present the case for the patient’s
involuntary commitment to the court.
c. Notwithstanding the provisions of subsection b. of
this section and upon notice to the county adjuster:
(1) The Attorney General, or the county
prosecutor acting at the request of the Attorney
General, may supersede the county counsel or
county adjuster and assume responsibility for
presenting any case for involuntary commitment
to treatment or may elect to participate with the
county counsel or county adjuster in presenting
any such case; and
(2) The county prosecutor may supersede the
county counsel or county adjuster and assume
responsibility for presenting any case for
involuntary commitment to treatment initiated
by the county prosecutor pursuant to subsection
c. of section 10 of P.L.1987, c.116 (C.30:4-
27.10) or may elect to participate with the
county counsel in the presentation of any such
case.
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M.F.'s assigned counsel has steadfastly adhered to the view that because
the statute specifically names the county adjuster, prosecutor, or Attorney
General as persons entitled to present a case for commitment, the guardian has
no role in the matter because he cannot subsume the role of the prosecuting
authority. Although we agree W.F. cannot subsume the county adjuster's role
in presenting the case, the statute does not expressly prohibit the intervention
of the legal guardian for other purposes. As the judge recognized, the guardian
owes a duty to M.F. to safeguard his well-being and protect his best interests
particularly where, as here, the "wishes of the ward are not ascertainable with
reasonable efforts." N.J.S.A. 3B:12-56(d).
We also reject M.F.'s counsel's argument that the judge abused his
discretion in allowing W.F. to intervene. Rule 4:33-2, in pertinent part, states
that "anyone may be permitted to intervene in an action if the claim or defense
and the main action have a question of law or fact in common." Because Rule
4:33-2 is "the more liberal permissive intervention rule," we must "review the
court's determination of a permissive intervention motion under an abuse of
discretion standard." N.J. Dep't of Env't Prot. v. Exxon Mobil Corp., 453 N.J.
Super. 272, 286-87 (App. Div. 2018) (citing City of Asbury Park v. Asbury
Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006)).
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M.F.'s serious condition, which is undisputed, requires significant
institutional care and supervision. His diagnosis of schizophrenia,
disorganized type, is complicated by a history of neuroleptic malignant
syndrome, which according to his treating doctors is triggered by changes in
his environment. 8 Indeed, M.F. was rejected from one facility because they
could not accommodate his level of care. Because the gravity of his condition
also means he cannot communicate his wishes or desires, it is the guardian's
statutorily vested duty to exercise M.F.'s rights in a manner consistent with his
best interests. N.J.S.A. 3B:12-56(d). Mindful of these unique circumstances,
8
A June 2019 commitment review report described the nature of this
condition:
The patient does not tolerate changes in environment
well. When he was transferred from Hagedorn to
Greystone Park Psychiatric Hospital in 2012, several
times he developed neuroleptic malignant syndrome
(which is potentially a deadly condition, which requires
all antipsychotics to be stopped). As a result of that, he
developed severe psychosis with paranoia and became
very assaultive, had to be transferred to a different unit in
order to stabilize him. It took the patient [a] very long
time to decrease psychosis and improved ADL's, but not
to the level he had before his transfer to Greystone Park
Psychiatric Hospital. He remains in active treatment.
Recently lithium was decreased because of the side
effects of increase in creatinine.
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we conclude that it was not an abuse of discretion to permit the guardian to
intervene in this matter on behalf of his ward.
We note that the judge had considered appointing a guardian ad litem for
M.F. Pursuant to Rule 4:86-4(d), the court may appoint a guardian ad litem
"in addition to counsel . . . to evaluate the best interests of the alleged
incapacitated person and to present that evaluation to the court," though such
appointments are reserved for "special circumstances." In addition, Rule 4:26-
2, "which governs the appointment of a guardian to represent the interest of an
infant or incompetent person in the context of a particular litigation . . . ." In
re Clark, 212 N.J. Super. 408, 412 (Ch. Div. 1986), provides that:
a minor or mentally incapacitated person shall be
represented in an action by the guardian of either the
person or the property, appointed in this State, or if no
such guardian has been appointed or a conflict of
interest exists between guardian and ward or for other
good cause, by a guardian ad litem appointed by the
court . . . .
[Rule 4:26-2(a)].
Our Supreme Court discussed the distinct nature of the roles of assigned
counsel and a guardian ad litem in the case In re M.R., 135 N.J. 155, 172-78
(1994), involving a developmentally disabled young woman's specific capacity
to choose where to live. M.R.'s father argued "that the hearing was unfair
because M.R.'s appointed counsel did not zealously advocate her stated
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preference to live with him." Id. at 172. Pursuant to the version of Rule 4:86-
4 in effect at the time – which neither required counsel to argue the alleged
incompetent's stated preferences, nor permitted the appointment of a guardian
ad litem in some cases – M.R.'s attorney recommended that M.R.'s preference
should not be given significant weight, and that "either household would serve
M.R.'s best interests." Id. at 173. The question, the Court said, was "whether
the role of appointed counsel for an incompetent is zealously to advocate the
incompetent's position or simply to inform the court of counsel's perception of
the incompetent's best interests." Id. at 172.
Looking to "the analogous context of child-custody cases," in which a
court normally appoints counsel to represent the child and a guardian ad litem
to conduct independent factfinding and make a recommendation based on the
child's best interests, id. at 173-74, the Court explained:
In sum, several reasons support the distinction
between an attorney and a guardian ad litem for an
incompetent. First, 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.
Second, the attorney and guardian may differ in their
approaches. 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. Finally, a
guardian may merely file a report with the court, but
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the attorney should zealously advocate the client's
cause.
[Id. at 175.]
The Court concluded that not "every case [would] require both in the future,"
but that in some cases, "an incompetent, like a minor, may need both an
attorney and a guardian ad litem." Ibid. Accordingly, the Court stated that on
remand, M.R.'s "attorney's role should be to advocate her choice, as long as it
does not pose unreasonable risks for her health, safety, and welfare," and that
"[i]f the court concludes that M.R. is incapable of deciding where to live, it
may appoint a guardian ad litem to represent her best interests." Id. at 178.
In this case, M.F. is incapable of communicating his own wishes or
desires to his counsel. Thus, counsel is merely reporting to the court his
perception of what is in his client's best interests. Under those circumstances,
M.R. directs that appointment of a guardian ad litem for an adult incompetent
may be appropriate. Ibid.
We conclude that "special circumstances" exist to appoint a guardian ad
litem given M.F's inability to communicate with assigned counsel. R. 4:86-
4(d). We also conclude that good cause exists due to the sharply divergent
views giving rise to a conflict between M.F.'s guardian and his assigned
counsel, R. 4:26-2(a), which likewise warrants the appointment of a guardian
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ad litem on behalf of M.F. to make decisions or recommendations to the court
guided by the best interest standard.
To the extent we have not addressed any of the remaining arguments
raised by the parties, we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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