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In re Gilbert

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 GUARDIANSHIP CASE

POINT III: THE CRITERIA FOR A PRIVATE GUARDIAN SHOULD BE THE SAME AS THE CRITERIA FOR A PUBLIC GUARDIAN

POINT IV: THE ACTIONS IN THE GUARDIANSHIP PROCEEDINGS RAISE ADDITIONAL QUESTIONS ABOUT ITS PURPOSE

POINT V: COMPLEX FINANCIAL INSTRUMENTS SHOULD BE EXAMINED AND EVALUATED ACCURATELY

a.

First, Heine contends that the verified complaint did not comply with the relevant court rules because of certain omissions and errors. She alleges that it inaccurately refers to Dr. Gilbert as divorced when in reality he is widowed, and that it makes reference to a living will dated March 4, 1997, when in reality that document was superseded by a subsequent directive executed in 2007. She also asserts that the complaint violated Rule 4:86-2 because no affidavit from a psychologist was attached. Finally, she claims that the complaint misstates the extent of Gilbert's authorization to manage Dr. Gilbert's accounts and that it fails to identify third parties who allegedly signed checks and otherwise depleted Dr. Gilbert's assets.

Rule 4:86-1 outlines the basic information about the incapacitated person that must be provided in the complaint, "such as name, age, domicile, and address . . . ." R. 4:86-1. The purpose of the requirement is self-evident. Rules 4:86-2(a) and (b) require that affidavits be attached to the complaint describing the real and personal property of the alleged incapacitated person as well as that affidavits be attached to the complaint from two physicians having qualifications as set forth in N.J.S.A. 30:4-27.2(t), or in the alternative, the affidavit of a physician as described in N.J.S.A. 30:4-27.2(t) and one licensed practicing psychologist as defined in N.J.S.A. 45:14B-2.

From our review of the record, the requirements of Rule 4:86-1 were met. Any errors that may have been contained in the background information were immaterial to the issues at hand.

Gilbert attached his own affidavit detailing Dr. Gilbert's real and personal property. It complied with the requirements of Rule 4:86-2(a).

The affidavits from two physicians complied with Rule 4:86-2(b). Heine mistakes the rule as requiring affidavits from psychologists.

Therefore, there were no technical defects in either the verified complaint or accompanying affidavits. Those documents did not in some fashion render Gilbert's appointment null and void.

b.

Second, Heine complains that there are fatal procedural errors in the guardianship case because the court-appointed counsel did not adequately fulfill his role as defined in Rule 4:86-4(b). We disagree.

Van Dyke interviewed Dr. Gilbert on three separate occasions but was unable to communicate with him. Van Dyke interviewed a number of longtime friends of Dr. Gilbert, and provided the court with that information, along with his impressions of the reliability of their statements. He turned over to the court copies of a living and a testamentary will that Heine supplied. Although Van Dyke did not personally discover that Gilbert entered a guilty plea to a misdemeanor related to a custody dispute ten years earlier, which conviction was later vacated, or that Gilbert had filed bankruptcy related to his divorce, once provided with the information, the judge ruled it was irrelevant to Gilbert's ability to act as guardian. Van Dyke's failure to uncover this information personally is therefore not a significant omission which in any way detracted from the performance of his duties. Just because Heine did not agree with Van Dyke's recommendations did not mean that the attorney failed to comply with court rules or that there were procedural errors in the case.

c.

Third, Heine also claims that the trial court should have appointed a guardian ad litem in order to investigate Gilbert's past and protect Dr. Gilbert's interests. As stated above, the judge found Gilbert to be fit to act as guardian for his father and we see no reason to disturb that conclusion.

As the judge said in denying Heine's motion for reconsideration, Gilbert had "a well-recognized track record [] because of the length of time between the period when he was appointed the temporary guardian and the ultimate appointment of final guardian, that seven to eight-month period . . . [was] a very well-demonstrated record of acting in the best interests of the ward." The judge perceived Gilbert to have proven himself to be suitable to act as guardian for his father. Nothing in the record causes us to disagree with that conclusion.

The appointment of a guardian ad litem is controlled by Rule 4:86-4(d), which states:

[a]t any time prior to entry of judgment, where special circumstances come to the attention of the court by formal motion or otherwise, a guardian ad litem may, in addition to counsel, be appointed to evaluate the best interests of the alleged incapacitated person and to present that evaluation to the court.

[R. 4:86-4(d).]

The decision to appoint a guardian ad litem is therefore left to the court's reasonable exercise of discretion, when "special circumstances" arise. No such circumstances were present here. The decision as to the appointment of a guardian ad litem, which is discretionary, will not be set aside unless there was an abuse of discretion which resulted in the "court pursu[ing] a 'manifestly unjust course.'" Union Cnty. Improvement Auth. v. Artaki, 392 N.J. Super. 141, 149 (App. Div. 2007) (quoting Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968). The trial judge's decision not to appoint a guardian ad litem is a reasonable exercise of his discretion, amply supported by the record, and far from "manifestly unjust."

Heine's separate position that the process for the appointment of a private guardian and a professional guardian should be the same is an issue that we will not address on the appeal. See N.J.S.A. 52:27G-32 to -43, the "Registered Guardian Act." Such a change requires legislative amendments we do not have the authority to make, and we offer no views about the merits of such potential legislation.

d.

Fourth, Heine questions Gilbert's motives in seeking the appointment. Although not explicitly stated, Heine implies that Van Dyke and Gilbert, either in collusion or individually, are initiating lawsuits regarding Dr. Gilbert's assets, including the Garfield property in which she is a joint tenant, for the purpose of obtaining some improper financial benefit. As a result, she contends that the trial court's appointment of Gilbert as guardian should be reversed. There is simply no factual support for this argument. It is so lacking in merit as to not require further discussion in a written opinion. See R. 2:11-3(e)(1)(E).

e.

Heine's final point is that the record developed during the hearings contained inaccuracies with respect to the Garfield property in which she is a joint tenant, including the fact that she "paid full consideration" and was actually owed money on account of the acquisition. She therefore seeks a reversal of the trial court's order on this basis.

Certainly there are disputes between Gilbert and Heine with reference to the Garfield property, which will be addressed in the quiet title action. Those disputes, however, were not the proper subject of the guardianship proceeding. The inclusion of the Garfield property in the incompetent's estate for purposes of the guardianship proceedings is not dispositive of Heine's claims. Any errors with regard to the extent of Dr. Gilbert's interest will be resolved in another forum, the quiet title action, and are irrelevant to the appointment of a guardian.

Affirmed.

20101026

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