In NJ Guardianship, there’s a difference between the attorney and the Guardian ad Litem

When a Complaint for Guardianship  is filed by anyone in New Jersey, the Court is required to appoint an attorney [N.J.R.4:86-4(b)]to represent the legal rights and preferences of the person who is alleged to be incapacitated and alleged to require a guardian. There is no legal presumption that just because the Complaint for Guardianship was filed, that the relief should be granted. Guardianship involves the removal of all or some legal rights and so the person is entitled to vigorous representation as a matter of constitutional Due Process.

The Rules of Professional Conduct direct attorneys for clients under a disability to maintain a “normal attorney-client relationship” to the extent possible. This means that other requirements for attorney-client relationships apply, such as preserving confidences, (R.P.C. 1.6), advocating the client’s expressed wishes, settling a dispute only if the client has authorized the settlement, and avoiding conflicts of interest (R.P.C.1.7 – 1.10). These Rules apply to court-appointed attorneys  in guardianship cases as well, as explained by the NJ Supreme Court in Matter of M.R. The role of the attorney is to subjectively advocate for their client’s position. There are cases where the client is clearly incapable of understanding and expressing any position, but that’s not what I’m writing about.

On the other hand, a Guardian ad Litem (“G.A.L.”) is an attorney who is appointed by the Court when a party is an alleged incapacitated person who needs someone to exercise objective judgment about what is in the party’s best interests. There are times in contested guardianship cases that the attorney for the AIP opposes some aspect of the plaintiff’s suit. Generally that is when the court would appoint a GAL. See N.J.R. 4:86-4(d).

There are times when the court-appointed attorney becomes uncomfortable with advocating for what the client wants. The attorney may feel that s/he has a conflict of interest between themself and their client. However, the contours of the attorney’s job are clear, as is their duty to their client. The court can choose to appoint a GAL after seeing the Answer filed by the attorney. See for instance, Matter of Pauline Mason (1997).

If the client wishes to oppose the petition, the attorney needs to file an Answer admitting or denying the allegations  of the Guardianship Complaint. At that point, the battle is joined, the court may appoint a GAL, and the litigation or settlement discussions will ensue.

For representation on guardianship matters call 732-382-6070

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2 thoughts on “In NJ Guardianship, there’s a difference between the attorney and the Guardian ad Litem

  1. In New Jersey, does the disabled adult who in under guardianship have the right to vote?

  2. Thank you for commenting! Although all rights are removed unless they are specifically reserved or preserved to the individual in the Judgment of Guardianship, the right to vote cannot be removed without the Court making a specific finding concerning the individual’s ability to understand the meaning and effect of voting. See my earlier post on that issue at https://blog.finkrosnerershow-levenberg.com/elder-law-news/person-guardianship-still-right-vote/.

    Cordially, Linda

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