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In re Gilbert

October 26, 2010

IN THE MATTER OF EDWIN O. GILBERT, AN ALLEGED INCAPACITATED PERSON.


On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Ocean County, Docket No. 180454.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 27, 2010

Before Judges Sabatino and Alvarez.

By order dated July 27, 2009, Stephen L. Gilbert was appointed the permanent guardian of Edwin O. Gilbert, an incapacitated person. Ellen Heine, a joint tenant with the incapacitated person in certain premises, objected to the appointment and now appeals pro se. For the reasons that follow, we affirm.

The incapacitated person, Edwin O. Gilbert, for ease of reference, will be referred to as Dr. Gilbert. The guardian, Stephen L. Gilbert, will be referred to as Gilbert. Dr. Gilbert has two children, Gilbert and Nancy Craker. Dr. Gilbert suffered a stroke in January 2009, resulting in aphasia, meaning he has lost the ability to use language. Although he can speak random words, his sentences are neither coherent nor responsive to questions.

Heine and Dr. Gilbert became acquainted sometime prior to 1985, when she worked in the futures department in an investment firm in Manhattan. Dr. Gilbert, who was a veterinarian, treated Heine's pet. Heine later moved in with him and his second wife after Heine became temporarily disabled due to a house fire. Heine held the power of attorney for Dr. Gilbert's second wife, Louise Auger, who died in 2008. The property in which Heine is a joint tenant with Dr. Gilbert, a source of dispute during the guardianship proceedings and the subject matter of separate litigation to quiet title initiated by the guardian, is located in Garfield.

Heine objected to Gilbert's appointment, questioning his motives for seeking the appointment as well as his character. Suffice it to say that Craker renounced any interest in becoming Dr. Gilbert's guardian and supported the appointment of her brother during these proceedings. Because of questions raised in the verified complaint for guardianship regarding Heine's involvement with Dr. Gilbert's financial affairs, she was restrained on February 13, 2009, from presenting any financial documents to Dr. Gilbert for his signature, entering his property, or signing any documents on his behalf.

Peter Van Dyke, Esquire, was appointed in that initial order to act as Dr. Gilbert's attorney. He personally interviewed Dr. Gilbert, examined his medical records, investigated his current circumstances, and made reasonable inquiries to locate important documents. Van Dyke reported to the court that Dr. Gilbert's aphasia made it impossible to understand him, and he expressed concern about the state of Dr. Gilbert's home and property. In Van Dyke's supplemental report, he summarized conversations with Dr. Gilbert's friends, including those who shared Heine's concerns about Gilbert's motives in becoming guardian for his father, and another individual who was concerned Heine had not paid any of his bills. In his final report, Van Dyke confirmed that the rents from the Garfield property had not been used for the benefit of Dr. Gilbert and that the condition of the property was poor. Van Dyke also questioned the credibility of Dr. Gilbert's friends who doubted Gilbert's suitability to act as guardian and aligned themselves with Heine as, among other things, they attributed to Dr. Gilbert a greater ability to communicate than was the case.

On June 22, 2009, the court found that "an adjudication of incapacity is warranted and the appointment of a permanent guardian . . . necessary and appropriate." He further found that the incompetent's family supported the appointment of Gilbert as the guardian. Accordingly, the appointment was made by order dated July 27, 2009.

Thereafter, Heine filed an application for reconsideration of the appointment, seeking to void Gilbert's appointment based on his alleged misdeeds some ten years prior related to his divorce. These included a criminal conviction arising from a custody dispute, as well as a bankruptcy proceeding. Additionally, Heine produced a letter written to Dr. Gilbert by his son which Heine characterized as nothing more than an effort to secure monetary gifts from his father for himself and a friend. The court denied the application on October 14, 2009. This appeal followed.

Heine's points as set forth in her brief are as follows:

POINT I: THERE ARE OMISSIONS IN THE VERIFIED COMPLAINT

POINT II: THERE ARE PROCEDURAL ERRORS IN THE ...


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