June 27, 2008
IN THE MATTER OF FLORENCE SIEGAL, AN INCAPACITATED PERSON.
On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Union County, Docket No. 07520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2008
Before Judges Lihotz and Simonelli.
Appellants Barbara Brookman (Barbara), Jeffrey Brookman (Jeffrey) and Howard Brookman (Howard)*fn1 appeal from the Judgment of Incapacity and Order Appointing Guardian of July 5, 2007, adjudging Florence Siegel (Florence) an incapacitated person and ordering other relief. Because we conclude that appellants lack standing to bring this appeal, we dismiss.
The following facts are summarized from the transcript of the hearing on June 21, 2007, certain documents in appellants' appendix and the parties' briefs.*fn2 Florence is 92 years old. She is a widow and has no children. She purportedly is a close friend of appellants. In November 2000, Florence executed a Power of Attorney (POA) to appellants. She also executed a Proxy Directive (Proxy), appointing Barbara as her health care representative and Howard and Jeffrey as alternates. Florence resided in Bayonne at the time she executed the POA and Proxy. Sometime thereafter, she began living in Barbara's home in Hillside.
On May 9, 2007, at approximately 10:30 p.m., Barbara placed an emergency call for medical assistance for Florence. The Hillside Police Department and Hillside Fire and Rescue Unit responded. A police officer reported that upon arrival, Barbara and Jeffrey led them to Florence's bedroom where they discovered the elderly woman lying on a garbage bag in a fetal position wrapped in a blanket and wearing a filthy sweater. Florence had a large bed sore on each buttock by her inner thigh and a large reddish rash. She was conscious but unresponsive to questions. The bedroom smelled of urine, and its floors were cluttered with debris.*fn3
The officer also reported that Barbara and Jeffrey became uncooperative, and were arrested and charged with neglect of the elderly, contrary to N.J.S.A. 2C:24-8.*fn4 Barbara was also charged with resisting arrest, contrary to N.J.S.A. 2C:29-2. Howard arrived at the scene, was advised of the situation, and was repeatedly instructed not to interfere. He did not comply and was arrested and charged with obstruction of justice, contrary to N.J.S.A. 2C:29-1, and hindering apprehension, contrary to N.J.S.A. 2C:29-3.*fn5
Florence was taken to Newark Beth Israel Hospital, where she was admitted on May 10, 2007. According to Guzman, Florence was "in terrible physical condition," she "was unkempt and extremely dirty and foul-smelling", and she "suffered from multiple decubitus ulcers and was dehydrated and malnourished." Guzman also reported that the Brookmans were uncooperative when asked about Florence's assets and income sources. Guzman recommended the appointment of a guardian and discharge to a nursing home.
Florence's treating physician later diagnosed her with multiple stage three decubitus ulcers in her right hip and feet, contractures, advanced dementia, a hematoma or sore on her right shin, dehydration, malnutrition, and hypothyroidism. The doctor also determined that Florence was incapable of understanding her medical prognosis; unable to make medical decisions or manage her financial, social and medical affairs; she was non-ambulatory; and she was incapable of attending, comprehending or participating in a hearing. A psychiatrist also diagnosed Florence with dementia and determined she was incapable of self-care. Both doctors recommended the appointment of a guardian.
On May 24, 2007, the hospital filed a verified complaint and supporting certifications, seeking the adjudication of Florence as mentally incapacitated and the appointment of a guardian. An order was entered on May 25, 2007, suspending the POA and Proxy and appointing the Office of the Public Guardian for Elderly Adults (Public Guardian) as temporary guardian. An order for a hearing was also entered, setting June 21, 2007 as the hearing date, and requiring as follows:
ORDERED, that any interested person who desires to be heard in this action either personally or through legal counsel shall, not later than five (5) days before the hearing date, serve upon counsel for the Petitioner and file with this Court such interested person's answer and/or opposing certification. This action may proceed ex parte with respect to all such interested persons so defaulting[.]
On or about May 30, 2007, the Brookmans were served with both orders and the verified complaint. They did not file an answer or opposing certification, but they attended the hearing on June 21, 2007. Barbara's counsel advised the trial judge that he only represented Barbara in the criminal matter, and they were not at the hearing to participate but "only . . . to hear and monitor this case." The judge acknowledged that the Brookmans had an interest "in . . . observing the proceedings," but concluded that they were not parties because they did not file any application to join in the proceeding. Nevertheless, the judge permitted Barbara to "simply express [her] point of view to the court as a,  courtesy to [her], but [she's] not a party to the case." The judge found there was clear and convincing evidence that Florence was not capable of managing her affairs and required a guardian. He appointed the Public Guardian to serve as her guardian.
On June 26, 2007, the judge received an unsigned certification purportedly from Barbara opposing the appointment of a guardian. It is unclear from the record whether the judge considered the certification; however, he could not do so. See Costantino v. N.J. Merit Sys. Bd., 313 N.J. Super. 212, 221 (App. Div.), certif. denied, 157 N.J. 544 (1998) ("[u]nsigned and unsworn extra-judicial statements" must be "reiterated, adopted, or reaffirmed under oath."). Nevertheless, the judge entered an order on July 5, 2007, adjudicating Florence an incapacitated person and appointing a guardian. The judge also required the Brookmans to submit a formal accounting of Florence's assets and income.*fn6 This appeal followed.
Rule 4:86-5 states if "any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than five days before the hearing, serve and file an answer to the complaint." (Emphasis added.) The Brookmans did not file an answer to the complaint or comply with the order requiring them to do so. Thus, they were not parties to the guardianship action. Accordingly, they lack standing to bring this appeal.