This is a motion for an award of attorney's fees for services rendered as guardian ad litem to George Clark, an allegedly incompetent patient of Cooper Hospital/University Medical Center (Cooper). This attorney represented George Clark in a hearing to determine whether the patient was competent and whether certain life-saving surgery should be performed. See In re Clark, 210 N.J. Super. 548 (Law Div.1986). Cooper, plaintiff in the underlying action, opposes the award of attorney's fees against the hospital on the ground that there is no authorization under the New Jersey civil practice rules for such an award against a party.
The guardian argues that there is express authorization for the award of counsel fees under R. 4:83-4. The attorneys for the hospital argue that the guardian ad litem's appointment was made pursuant to R. 4:26-2 and that, even if R. 4:83-4 were applicable, it does not provide for the award of fees against a party.
The first issue, therefore, is under which rule the attorney was appointed. While in In re Quinlan, 137 N.J. Super. 227, 236 (Ch.Div.1975), Judge Muir appointed a guardian ad litem for Karen Quinlan under R. 4:26-2, later in that opinion he considered Mr. Quinlan's application to be appointed guardian
of his daughter under R. 4:83-2. Id. at 269. Other court decisions have proceeded under R. 4:83-1 et seq. in matters of this kind. In re Schiller, 148 N.J. Super. 168, 181 (Law Div.1977) (where there is an application for a guardian the court has authority to appoint an attorney for an alleged incompetent under R. 4:83-4(a)). In re Quackenbush, 156 N.J. Super. 282, 288 (Law Div.1978) (R. 4:83 governs trial on the issue of mental competency).
An examination of the cases decided under the two rules indicates that R. 4:83-1 et seq., rather than R. 4:26-2, is applicable to this type of appointment. R. 4:26-2 governs the appointment of a guardian to represent the interest of an infant or incompetent person in the context of a particular litigation, while R. 4:83-1 et seq. governs the appointment of general or special guardians, not necessarily in a litigation context. R. 4:26-1 et seq. is in chapter IV of the rules, entitled "Parties." Rule 4:26 is entitled "Parties Plaintiff and Defendant," and all the rules in this section relate to the designation and/or representation of certain parties. (i.e., R. 4:26-1, "Real Party in Interest"; R. 4:26-3, "Virtual Representation of Future Interest"; R. 4:26-5, "Unknown Defendants: In Rem Actions").
Rule 4:26-2 governs the representation "in an action" of an infant or incompetent person by his or her appointed guardian or, if no guardian has been appointed, by a guardian ad litem appointed by the court. R. 4:26-2(b)(1) governs the appointment of a parent as guardian ad litem in negligence actions without court order, while the court may appoint a guardian ad litem upon the petition of an infant, incompetent person or a friend on her or his behalf, R. 4:26-2(b)(3), or upon the court's own motion R. 4:26-2(b)(4). The only function for the court under R. 4:26-2 is to review the application of the proposed guardian ad litem and determine whether that person will adequately protect the party's interest. The court must appoint the proposed guardian ad litem unless it finds good cause for not doing so. A conflict of interest between the party
and the proposed guardian ad litem constitutes good cause for the proposed guardian's rejection. The purpose of a guardian under R. 4:26-2 is clearly to protect the infant's or the incompetent person's interests in the course of litigation and "friendly" judgments. See Pressler, Current N.J. Court Rules, Comment 3 to R. 4:26-2 (". . . the function of the guardian ad litem is to protect the interests of his ward in respect of litigation.") Cf. In re Commitment of S.W., 158 N.J. Super. 22 (App.Div.1978):
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 . . . the procedure is set forth in R. 4:26-2. [at 25-26]
The Appellate Division differentiated between such guardian ad litem appointments and those where there are greater interests to be protected than a litigant's rights:
But where the effect is to restrain an allegedly incompetent person of his liberty or deprive him of the control of his property and the management of his personal affairs, "[s]uch an adjudication must be sought in a constitutional manner in a proceeding instituted for that purpose." [ Id. at 26,] citing East ...