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In re Guardianship of Macak

April 27, 2005

IN THE MATTER OF THE GUARDIANSHIP OF WALTER J. MACAK


On appeal from the Superior Court Chancery Division, Probate Part, Hunterdon County, Docket No. 40031.

Before Judges Stern, S.L. Reisner and Graves.

The opinion of the court was delivered by: S.L. Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 15, 2005

Walter J. Macak appeals from an order of the trial court granting summary judgment. The trial court dismissed a 2003 application in which Mr. Macak asked the court to set aside a 2002 judgment declaring him incapacitated and to restore him to legal capacity, pursuant to R. 4:86-7. We reverse and remand for a plenary hearing.

I.

In 2002, Mr. Macak's daughter filed a complaint pursuant to R. 4:86-2, seeking the appointment of a guardian for her father based on her contention that he was incapacitated. The complaint was supported by affidavits from two doctors. The impetus for the complaint was her concern that Mr. Macak had Alzheimer's disease, was unable to manage his finances, and was falling prey to financial "scam artists." Further, he was living alone in a large house cluttered with debris. Mr. Macak directed his attorney to oppose the guardianship application and specifically indicated his opposition to having his daughter appointed as his guardian, if he was declared incapacitated.

Instead of opposing the guardianship or advocating for Mr. Macak's choice of guardian, his attorney negotiated a "settlement" under which she signed a consent order on Mr. Macak's behalf. The consent order, which the trial court signed without holding a hearing or making findings of fact and conclusions of law, declared Mr. Macak to be incapacitated and appointed an attorney, LaDonna Burton, as his guardian. Ms. Burton was to serve without bond, although, at the time, Mr. Macak's estate was worth approximately one million dollars. The consent order also provided that the guardian would continue Mr. Macak's "gifting program" of giving his daughter $18,000 per year. Mr. Macak also signed a separate written agreement with Ms. Burton, in which he agreed to move out of his house into an assisted living facility within five days of the date of the agreement and she agreed to permit him to visit his house on a regular basis.

On this appeal, the parties stipulated that Mr. Macak entered into the 2002 agreement because his attorney and Ms. Burton convinced him that if he were declared incapacitated, absent the agreement, the court would appoint his daughter as his guardian against his wishes.

In 2003, Mr. Macak persuaded a friend to help him retain an attorney to assist him in re-opening the guardianship. Mr. Macak's attorney filed a complaint contending that Ms. Burton had prevented Mr. Macak from visiting his house, that he had signed the guardianship "agreement" under duress, and that he was not incapacitated but only needed assistance in managing his finances. He therefore asked the court to set aside the guardianship, restore him to legal capacity, and appoint a conservator for him.

Following some limited discovery, both sides filed reports from doctors who had examined Mr. Macak, and reports from a geriatric specialist concerning whether he could resume living in his house. Mr. Macak's doctor, Dr. Paul Rosenberg, opined that he suffered from mild dementia, but was not incapacitated. The doctor retained by the guardian, as well as the court-appointed doctor, disagreed with Dr. Rosenberg. Anthony J. Serra, Esq., a guardian ad litem appointed by the court, issued a fifty page report cogently detailing the errors in the prior guardianship proceeding and advocating that the court consider allowing Mr. Macak to resume living in his house.

The court declined to hold an evidentiary hearing. Instead, the court granted the guardian's motion for summary judgment, concluding that Dr. Rosenberg's opinion was in the "vast minority."

II.

After reviewing the record, including all of the medical reports and the report of the guardian ad litem, we conclude that the initial guardianship proceeding in 2002 was fraught with error, mandating that the matter be remanded for a hearing on the issue of Mr. Macak's capacity. We are also persuaded that the existence of material disputes of fact entitled Mr. Macak to an evidentiary hearing on his 2003 application to reopen the guardianship. Therefore, we remand this matter to the trial court for a hearing on the following issues: whether Mr. Macak is incapacitated such that he requires a guardian; if so, whether the guardianship should be plenary or whether Mr. Macak retains the ability to make certain decisions for himself such that the guardianship should be limited in certain aspects; if Mr. Macak is incapacitated, ...


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