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In re Tierney

Decided: April 25, 1980.

IN THE MATTER OF JANE TIERNEY, AN ALLEGED MENTAL INCOMPETENT


Meredith, J.s.c.

Meredith

This action comes to the court by way of a complaint entered by Marie Sayer who petitions the court to adjudge Jane Tierney mentally incompetent and grant complainant letters of guardianship. Ms. Tierney has in turn entered a motion to dismiss the incompetency action.

Jane Tierney is 55 years old, an only child of parents now dead. She has never married. She has no aunt or uncle living; apparently six elderly cousins survive. On September 15, 1975 Ms. Tierney was seriously injured in an automobile accident and was as a result hospitalized for many months in the Mercer Medical Center, the Morris Hall Rehabilitation Center and the Kessler Rehabilitation Center. Because of her physical disabilities she still resides in a convalescent home. In June 1979 Ms. Tierney participated in a civil trial in which a jury awarded her $400,000 for personal injuries she suffered as a result of the automobile accident. Ms. Tierney's present assets amount to $405,487.

Plaintiff Marie Sayer, according to her affidavit, was a childhood friend of Ms. Tierney and over the years has assisted the latter with her personal and financial affairs. In January 1978 Ms. Tierney executed a power of attorney to plaintiff and plaintiff's husband. Ms. Sayer presently has control of Ms. Tierney's entire assets which include stock certificates and bank books. Plaintiff is in no way related to Ms. Tierney. Neither is Ms. Tierney in any financial or legal manner obligated to plaintiff. Ms. Sayer does not have any right, title or interest either equitable or legal in Ms. Tierney's assets. (Plaintiff is, however, the principal beneficiary of Ms. Tierney's last will and testament.)

On February 13, 1980, having become concerned that her affairs were not being properly handled, Ms. Tierney executed a power of attorney to her present counsel. It was and is her

intention to establish with counsel's assistance an inter vivos trust for her own care and maintenance. Plaintiff has refused to honor the revocation of her own power of attorney over Ms. Tierney's assets and has refused Ms. Tierney's request that $2,500 be paid from those assets to the latter's attorney.

On February 19, 1980 plaintiff filed this complaint. On that same day Ms. Tierney filed in the Chancery Division a complaint which requests the court to direct Ms. Sayer to turn over to Ms. Tierney's attorney all records and accounts of her assets. That proceeding has been stayed pending the outcome of the present action.

After an initial determination that the complaint and medical affidavits submitted by plaintiff do, on their face, bring into question Ms. Tierney's soundness of mind, the court ordered this action be set down for a hearing and that notice be given to the proper parties, pursuant to R. 4:83-4. Briefs have been submitted by both sides. Plaintiff submits that Ms. Tierney is a mental incompetent and as a result cannot govern herself. Ms. Tierney insists that despite her physical disabilities she is of sound mind and is capable of managing her own affairs.

Before reaching the substantive issue of incompetency, the court has considered the question of plaintiff's standing, also raised by Ms. Tierney's counsel. The court concludes that Marie Sayer is not a proper plaintiff to initiate a determination of the incompetency of Jane Tierney and the complaint must therefore be dismissed.

It would appear at first blush that the question of who may institute an incompetency proceeding is answered simply by reference to In re Oswald , 132 N.J. Eq. 325 (Ch.1942). There it was held that a judicial determination of a person's mental incompetency may not be made upon the application of a "mere stranger": Chancery had only statutory jurisdiction over "lunatics," and the pertinent statutory provision, N.J.S.A. 3:7-35 (now repealed), prohibited the exercise of that jurisdiction upon the petition of a "stranger." The court found that petitioner in that case, who claimed to be a friend of the alleged incompetent (as

does plaintiff in the present action), was nevertheless a "stranger to Mrs. Oswald in the ...


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