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Matter of Mason

June 13, 1997


Higgins Cass, J.s.c.

The opinion of the court was delivered by: Cass

Civil Action

HIGGINS CASS, J.S.C. (Ch. Div. t.a.)

A motion was filed with the court by Edith Applebaum (Applebaum), the co-guardian of Pauline Mason, an adjudicated incompetent, (Mason), for the discharge of the court-appointed attorney for Mason, Karimu Hill-Harvey (Hill-Harvey). It is Applebaum's contention that, once guardians of an incompetent are appointed, there is no further need for a court-appointed attorney and indeed no authority in the court to permit the continuance of such person as attorney for an incompetent.

A brief recital of the procedural history of this case is pertinent. Upon the filing of a complaint by Mountainside Hospital seeking a declaration of incompetency of Mason this court by order dated February 1, 1996, appointed a social worker connected with the hospital, Rosemary Aikens (Aikens) as temporary guardian and Hill-Harvey the court-appointed attorney pursuant to R. 4:86-4(b). In the absence at the time of any family members, Aikens and Hill-Harvey did an extraordinary job in marshalling the alleged incompetent's assets, sorting papers, letters and the conglomeration of personal belongings in a house reminiscent of the Collier brothers. Hill-Harvey was instrumental in arranging for its sale and the sale of those personal belongings which Mason's sisters did not want, as also setting up an investment advisory account with First Union National Bank.

Upon notification to the two living sisters, Applebaum in Florida, and Fredericka Ingham (Ingham) in California, these ladies entered an appearance and indicated their desire to be appointed guardians of their sister who was now living in Green Hills, an exclusive residential care facility in West Orange. Nevertheless, because both sisters lived so far away and because of Mason's frail health *fn1, on the date of final hearing, it was agreed that the two sisters and Aikens would serve as co-guardians of the person and property of Mason, but with final authority in Aikens, after consultation with the sisters, to make medical decisions for Mason.

Unfortunately, following the hearing the sisters each returned to her home without consulting Aikens and/or Hill-Harvey regarding Mason's financial affairs. As the major part of the assets, close to one million dollars, had been placed in the investment account with the First Union National Bank, Hill-Harvey, on consultations with the sisters' attorney, Gary Campbell (Campbell) continued to oversee the receipts and disbursements on Mason's behalf.

In the fall of 1996 several events transpired. Ingham, the one co-guardian died suddenly on October 6, 1996. At the same period of time, Aikens requested the attorney, Campbell, who was now serving as attorney for all the guardians to make application to the court for additional commissions for her expert services and the extraordinary amount of work she had done as temporary guardian. Where it appeared at first that Applebaum was in acquiescence to the request, she withdrew her consent, necessitating a withdrawal of Campbell as attorney because of the conflict between the now two remaining co-guardians. Each co-guardian then retained new counsel and present counsel for Applebaum filed the motion before this court.

Meanwhile, after her sister's death, Applebaum sued the Estate of Ingham in California, seeking to prevent the probate of either of two wills. As Mason was named in the earlier will, service was made upon her at Green Hills. Hill-Harvey, on Mason's behalf protested the service upon the incompetent and requested further documentation be served on Hill-Harvey.

Because of the objections raised by Applebaum to the commissions requested by Aikens and also to various expenditures she had made, as well as allegations of self-dealing by Hill-Harvey in using her own staff people in connection with the cleaning of the house, a plenary hearing took place before this court on February 6, 1997, after which the court awarded Aikens reasonable commissions, found her expenditures totally warranted and that Hill-Harvey's use of staff was appropriated. Reserved was the question of whether Hill-Harvey should be discharged or had any role to fulfill since the guardians had been appointed.

It is Applebaum's contention that any services rendered by Hill-Harvey subsequent to the date of the judgment, July 19, 1996, are redundant since she and Aikens, as co-guardians, represent the interests of Mason and legal advice can be obtained from their two attorneys. Moreover, Hill-Harvey is not needed to perform the routine administrative and clerical tasks of the guardians in dealing with the incompetent's assets.

Hill-Harvey, in seeking instructions from the court as to whether she should be exercising any continuing role on behalf of her client, Pauline Mason, expressed her concern about Mason's agitated state when family members were mentioned, her unwillingness to have her sisters visit her and her lack of knowledge that Applebaum was appointed one of her guardians *fn2 or that Ingham had died. It is her contention that she was appointed by the court to represent the legal interests of Mason and to act only in her best interest until such time as the court terminates her appointment.

New Jersey statues do not require the appointment of an attorney to represent the interests of an alleged incompetent. However, in conformity with modern concerns for due process to an alleged incompetent, *fn3 N.J. Court Rule 4:86-4(b) requires the court to appoint counsel for alleged incompetent persons in incompetency hearings. That rule provides:

(b) Appointment and Duties of Counsel. The order shall include the appointment by the court of counsel for the alleged incompetent. Counsel shall 1) personally interview the alleged incompetent; 2) make inquiry of persons having knowledge of the alleged incompetent's circumstances, his or her physical and mental state and his or her property; 3) make reasonable inquiry to locate any will, powers of attorney, or health care directives previously executed by the alleged incompetent or to discover any interests the alleged incompetent may have as beneficiary of a will or trust. At least three days prior to the hearing date counsel shall file a report with the court and serve a copy thereof on plaintiff's attorney and other parties who have formally appeared in the matter. The report shall contain the information developed by counsel's inquiry; make recommendations concerning the court's determination on the issue of incompetency including the suitability of less restrictive alternatives such as a conservatorship or limited guardianship; and state whether the alleged incompetent has expressed Dispositional preferences and, if so, counsel shall argue for their inclusion in the judgment of the court. If the alleged incompetent obtains other counsel, such counsel shall notify the court and appointed counsel at least five days prior to the hearing date.

The court-appointed attorney in an incompetency matter represents the client's wishes as an attorney would represent a client in any particular legal dispute. The individual, the subject of the incompetency hearing, has rights, preferences and desires that are not wholly usurped ...

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