Assuming the representation of a client suffering from a disability can pose some difficult ethical issues for an attorney. For example, an attorney representing a client with known psychiatric disorders may wonder if the client really comprehends the gravity of the legal issues presented or truly understands the advice being offered. If the client in fact does not, then the attorney may wonder about the propriety of the representation.
The N.J. Rules of Professional Conduct, specifically, Rule 1.14, entitled “Client Under a Disability”, offers some guidance. The Rule provides as follows:
(a) When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) A lawyer may seek the appointment of a guardian, or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.
Thus, while the attorney should represent the impaired client in the same fashion as she would a non-impaired client, she may seek the appointment of a guardian if she reasonably believes that the client cannot act in his own interests, despite the legal advice being given. The Rule does not appear to impose an affirmative obligation upon an attorney to seek protective action; rather, the resort to protective action is made optional.
The use of the term “guardian” may reference one of two specific types of protective arrangements, the appointment of a guardian ad litem, or the imposition of a formal guardianship over the client’s person and/or property.
Applications for the appointment of a Guardian ad litem are governed by N.J. Ct. Rule 4:26-2(a), which 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”. Paragraph (b) of the Rule delineates the methods by which a guardian ad litem may be appointed, specifically, “upon the verified petition of a friend on his or her behalf”, appointment on a party’s motion, or appointment on the Court’s motion.
As per the Comments to the Rule, “the purpose of the guardian ad litem is to protect the interests of his ward in respect of litigation”. The guardian ad litem does not represent the incapacitated person as would an attorney; rather, the guardian ad litem is charged with making decisions on behalf of the ward, as counseled by the ward’s attorney of record and consistent with the ward’s best interests. Moreover, the petitioner need not prove incompetency; rather, a guardian ad litem may be appointed upon a mere allegation that the individual is not competent. In other words, “the guardian ad litem’s responsibility is to advise the Court as to whether a formal competency hearing may be necessary and if so, to represent the alleged mentally incapacitated person at that hearing”. See Pressler, Current N.J. Court Rules, Comment R. 4:26-2, (GANN).
Applications for formal guardianship, on the other hand, are governed by N.J. Court Rule 4:86. The Rule provides for the institution of guardianship proceedings upon verified complaint, an affidavit attesting to all of the property of the alleged incompetent, and an affidavit of two physicians that have examined the alleged incompetent. N.J. Ct. Rule 4:86-1; N.J. Ct. Rule 4:86-2. If satisfied with the pleadings, the Court will set an order for a hearing, upon notice to certain persons. The Court shall then determine the issue of incapacity on the hearing date, either by taking testimony or upon the affidavits. N.J. Ct. Rule 4:86-6(d).
If satisfied that the alleged incompetent is in fact incompetent, the Court will issue letters of guardianship to the incompetent’s spouse, or, if no spouse, to the incapacitated person’s next of kin, or, if there are no next of kin, to the Office of the Public Guardian for Elderly Adults. The guardian is thereafter charged with issuing reports to the County Surrogate concerning the incapacitated person’s property, health and welfare. N.J. Ct. Rule 4:86-6(d).
Unlike a guardian ad litem, who is appointed only for purposes of the litigation, the guardian is vested with control and responsibility over either the ward’s property and/or person until either relieved of said duties by the Court or the return to full or partial capacity. N.J. Ct. Rule 4:86-7.
Thus, where an attorney is faced with the dilemma of representing a seemingly incapacitated client, the attorney may seek the appointment of a guardian ad litem to protect the client’s interest during the litigation at issue. The guardian ad litem, if appointed, would then determine the need for formal guardianship proceedings. Conversely, an attorney may recommend that the family of the alleged incapacitated person seek the imposition of a formal guardianship. If a formal guardianship is obtained, then, pursuant to Rule 4:26-3, the guardian may assume the role of the guardian ad litem in the litigation by engaging in decision-making on behalf of the ward.
Regardless of the ultimate course of action, the attorney must always bear in mind that her ultimate duty is to the client.
Amy E. Stutzke, Esq.
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