The Role of the Court Appointed Attorney as Guardian “Ad Litem” on Behalf of the Alleged Incapacitated Person in a Guardianship Action

By Fredrick P. Niemann, Esq. of Hanlon Niemann Wright, a Freehold, NJ Guardianship Attorney

As Court-appointed attorney for an alleged incapacitated person (A/K/A), my role is to advocate for his or her wishes and preferences. The law in New Jersey, as articulated by the Supreme Court in the seminal case of Matter of M.R., 135 N.J. 155 (1994), is that an attorney for the alleged incapacitated person is a “zealous advocate” for the stated wishes of the client. Id. at 173074. “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.” Id. at 176. Further, the Court provided clear guidance concerning the role of court-appointed attorney and the balancing of what the client desires versus the client’s best interests:

“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.” Id. at 176.

It is with such underlying principals that a Court appointed guardian will submit her/his report as attorney for the alleged incapacitated person.

To discuss your NJ Guardianship matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.