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In re Periodic Review of Commitment of S.W.

Decided: March 20, 1978.

IN THE MATTER OF THE PERIODIC REVIEW OF THE COMMITMENT OF S.W.


On appeal from Essex County Juvenile and Domestic Relations Court.

Lora, Seidman and Milmed.

Per Curiam

Appellant, an indigent patient at the Essex County Hospital Center since her commitment by order dated December 18, 1947, was brought before the Juvenile and Domestic Relations Court for a regularly scheduled review of her commitment. R. 4:74-7(f). She was ordered discharged upon the hospital's finding an appropriate placement for her.*fn1

On September 6, 1977 a further hearing was held on the hospital's request for the appointment of a guardian ad litem. It appeared that S.W. refused to sign Medicaid forms for the disbursements of moneys to enable her to be placed in a nursing home facility, reportedly because of her desire to remain in the hospital. The appointment of the guardian was sought solely for the purpose of signing the required documents.

The Deputy Public Advocate who appeared on behalf of S.W. argued that the patient should be recommitted to the hospital because she had "a psychotic condition" and, if discharged, would be dangerous to herself or to others. But no claim of mental incompetency was asserted. The hospital's representative contended that the patient was not mentally incompetent. Although the trial judge recognized the problem of appointing a guardian ad litem in the absence of proof of incompetency, he determined, without elaboration, that the patient's "interests" required her to have such

guardian, and an order was entered naming one Kathy Drezchner of the hospital's Social Service Department for that purpose.

This appeal followed.*fn2 The Public Advocate's contentions are that (1) the court's appointment of a guardian ad litem was in error since no prior determination of incompetency by a court of competent jurisdiction had been rendered, and (2) the appointment of a party with adverse interests was erroneous.

In his statement in lieu of brief the county counsel acknowledged that a guardian ad litem "may only be appointed upon a showing that the Ward's unsoundness of mind will render her unfit to govern herself and property," citing Webb v. Webb , 96 N.J. Eq. 1 (Ch. 1924), and that no such finding was made. We are told that "this problem is becoming widespread, i.e., patients who are discharged are refusing to sign the forms necessary for their funding at a less restrictive facility," and that "no judicial mechanism presently exists to solve the problem at hand." It is intimated that the Office of the Public Advocate has counseled patients "not to sign the forms in issue or passively remain neutral." The submission is that we "sustain the appointment below with instructions as to the resolution of this problem."

It is thoroughly clear that the order under review must be reversed.

At the outset, we express doubt that the appointment of a guardian ad litem was appropriate here, setting aside for the moment the matter of S.W.'s mental competency. The function of such guardian is generally to insure the protection

of the rights and interests of a litigant who is apparently incompetent to prosecute or defend the lawsuit. An adjudication of incompetency in such instance is not necessary; it is "sufficient if the proof makes it evident that the party from any cause, whether by age, disease, affliction, or extreme intemperance, has become incapable and unfit for the government of himself and his property." ...


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