Right to counsel

In guardianship establishment proceedings for an incapacitated individual, a statute and court rule require the appointment of counsel. N. J. Stat. Ann. § 3B:12-24.1 (referring repeatedly to “if the incapacitated person is not represented, [] appointment of an attorney for the incapacitated person”); N.J. R. 4:86-4(b).  See also N.J. Stat. § 3B:12-56(d) (if protected person objects to voluntary admission, involuntary civil commitment procedures apply, and “If the ward objects to any other decision of the guardian of the ward pursuant to this section, this objection shall be brought to the attention of the Superior Court, Chancery Division, Probate Part, which may, in its discretion, appoint an attorney or guardian ad litem for the ward, hold a hearing or enter such orders as may be appropriate in the circumstances.”)

The compensation of an appointed counsel may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct. N.J. R. 4:86-4(e) (2011). N.J. Stat. Ann. § 30:4-165.14 adds:

The court shall appoint the Public Defender to serve as counsel for persons who do not have an attorney and over whom guardianship is sought pursuant to … (C. 30:4-165.4 et al.) if the petition seeks only guardianship of the person, to the extent that funds are available for this purpose. If the Public Defender is unable to perform this service, the court shall appoint an attorney licensed by the State of New Jersey and in good standing. No attorney’s fee is payable for the rendering of this service by the private attorney.

Additionally, for a person whom a court has determined because of physical or mental limitations or incapacity due to old age requires a conservator to handle his/her financial affairs, “the court shall have the right to appoint counsel for the proposed conservatee if it believes that counsel is necessary to adequately protect the interests of the conservatee.” N. J. Stat. Ann. § 3B:13A-3.

In In re M.R., 638 A.2d 1274 (N.J. 1994), the court clarified the role that counsel appointed pursuant to a statute should play:

Although we recognize the differences between minors and incompetents, we believe that many of the same considerations that prompted the Family Division Practice Committee to recommend an advocacy role for the attorney for a minor apply also to the attorney for an incompetent. Accordingly, we now request that committee to consider comparable amendments to Rule 4:86. At present, the Rule does not require the appointment of both an attorney and a guardian ad litem. Nor may every case require both in the future. In some cases, however, an incompetent, like a minor, may need both an attorney and a guardian ad litem.

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Ordinarily, an attorney should “abide by [the] 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 attorney’s role is not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes. That role, however, does not extend to advocating decisions that are patently absurd or that pose an undue risk of harm to the client.

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. Agenda for Reform, supra, 13 Mental & Physical Disability L. Rep. at 284. With proper advice and assistance, the developmentally-disabled client may be able to participate in such a decision. See id. at 285 (commenting on Recommendation II-C and quoting American Bar Association Model Rules of Professional Conduct (1983), Rule 1.14, Client Under a Disability). From this perspective, the role of an attorney for a developmentally-disabled person is like that of an attorney representing any other client.

Advocacy that is diluted by excessive concern for the client’s best interests would raise troubling questions for attorneys in an adversarial system. An attorney proceeds without well-defined standards if he or she forsakes a client’s instructions for the attorney’s perception of the client’s best interests. Lawrence A. Frolik, Plenary Guardianship: An Analysis, A Critique and A Proposal for Reform, 23 Ariz.L.Rev. 599, 635 (1981). Further, “if counsel has already concluded that his client needs ‘help,'” he is more likely to provide only procedural formality, rather than vigorous representation. Id. at 634-35; see also Maria M. Das-Neves, Note, The Role of Counsel in Guardianship Proceedings of the Elderly, 4 Geo. J. Legal Ethics 855, 863 (1991) (stating that “[i]f the attorney is directed to consider the client’s ability to make a considered judgment on his or her own behalf, the attorney essentially abdicates his or her advocate’s role and leaves the client unprotected from the petitioner’s allegations”). Finally, the attorney who undertakes to act according to a best-interest standard may be forced to make decisions concerning the client’s mental capacity that the attorney is unqualified to make. Frolik, supra, 23 Ariz.L.Rev. at 635.

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Until such time as we amend Rule 4:86, we offer the following guidelines to assist the attorney for an incompetent. First, a declaration of incompetency does not deprive a developmentally-disabled person of the right to make all decisions. The primary duty of the attorney for such a person is to protect that person’s rights, including the right to make decisions on specific matters. Generally, the attorney should advocate any decision made by the developmentally-disabled person. On perceiving a conflict between that person’s preferences and best interests, the attorney may inform the court of the possible need for a guardian ad litem.