F. within thirty days of January 11, 1988, to obtain their consent to the pursuit of the litigation. If counsel failed to contact the guardians or failed to obtain consent, the magistrate ordered that those two plaintiffs would suffer the entry of voluntary dismissals.
The court may not engage in a de novo review of this matter, for it is on appeal from the magistrate. Under F.R.C.P. 72(a), the court may only "modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." In this case, though, the court finds both of the magistrate's challenged holdings contrary to law.
The magistrate ordered that Agnes P.'s and Agnes F.'s cases would be voluntarily dismissed if their attorneys were unable to obtain consent to the prosecution of the actions from their private guardians. Implicit in this order was a holding that the private guardians have exclusive control over their wards' involvement in civil litigation. The magistrate may have based his ruling on N.J.S A. 3B:12-57(d), which confers upon a guardian the authority to "institute an action to compel the performance by any person of a duty to support the ward or to pay sums for the welfare of the ward . . ."
However, there is no real support -- in the statute or elsewhere -- for the magistrate's ruling. The statute only confers on the guardian the authority to file suit on behalf of the ward; nowhere does it make that authority exclusive. See N.J.S.A. 3B:12-57(d) ("he may institute an action . . ."). More importantly, "modern authorities generally regard the requirement that a guardian sue or be sued for the incompetent person as a protection of the interests of the incompetent person rather than as a limitation on his or her capacity to institute suit." S. Brakel, J. Parry and B. Weiner, The Mentally Disabled and the Law 437 (3d ed. 1985) (emphasis added). Especially in a lawsuit such as this one, where the plaintiffs are challenging the lawfulness of their confinement -- a confinement in which their guardians accede -- wards cannot be forbidden from suing without their guardians' consent. That consent, by definition, is unlikely to be forthcoming. See Norcom v. Rogers, 16 N.J. Eq. 484 (Ch. 1864); In re Williston, 17 N.J. Misc. 400, 10 A.2d 159 (Monmouth Cty. Orphans Court 1939). See also 44 C.J.S. Insane Persons § 142; Quada v. Quada, 396 S.W.2d 232, 234 (Tex.Civ.App. 1965); Guardianship of Walters, 37 Cal. 2d 239, 231 P.2d 473, 480 (1951); State v. Barton, 210 Ark. 816, 198 S.W.2d 512, 516 (1946); Westerdale v. Johnson, 191 Neb. 391, 215 N.W.2d 102, 103 (1974); Mathews v. Mathews, 25 Misc. 2d 250, 203 N.Y.S.2d 475, 479 (Sup. Ct. 1960); In re Sigel, 372 Pa. 527, 94 A.2d 761, 763 (1953).
This is not to say, of course, that wards are free to file suit without any constraints. Rather, there must first be a showing that the interests of ward and guardian are in conflict.
See Melick v. Melick, 17 N.J. Eq. 156, 159 (1864). In this case, however, the plaintiffs had no opportunity to make any such showing, for the magistrate raised the issue of consent sua sponte. The court therefore vacates the magistrate's order and remands the case to the magistrate for a hearing to determine whether the interests of the wards and their guardians conflict.
The magistrate also limited the discovery requests of Bonnie S., Dolores C. and Sylvia T. to "the current medical records (those within the last three months)" and "the most recent individual habilitation plan . . . if it includes current medical information." See Magistrate's Order (January 29, 1988), at 2. He based this limitation on N.J.S.A. 30:4-24.3, which provides that
all certificates, applications, records, and reports made pursuant to the provisions of this Title and directly or indirectly identifying any individual presently or formerly receiving services in a noncorrectional institution under this Title, or for whom services in a noncorrectional institution shall be sought under this act shall be kept confidential and shall not be disclosed by any person, except insofar as :