Appellate Division Affirms Surrogate’s Power to Dismiss Pleadings That Do Not Comply with Rule 4:86
In the Matter of K.P., an Alleged Incapacitated Person, No. A-2137-24, 2026 WL 1097416 (N.J. Super Ct., App. Div. April 23, 2026)
The case involves Kim, an 86-year-old widow, and the contest between her three children, with Lori and David on one side and Joy on the other. Kim had a durable power of attorney, advance directive for healthcare decisions, and a will, each of which names Joy as her primary agent or fiduciary and Lori as the alternate. In 2024, Kim executed new planning documents, again naming Joy as primary agent/fiduciary and Lori as the alternate.
Lori arranged for Dr. Rao to conduct a capacity evaluation of Kim. The evaluation was terminated prematurely because neither Kim nor Joy had been informed of the evaluation in advance. Notwithstanding the abbreviated session, Dr. Rao stated that there were indications that Kim did not seem fully aware of her medical condition, medication, or financial affairs. Dr. Rao concluded that a complete evaluation would be needed to definitively comment on Kim’s capacity.
In January 2025, Lori filed a verified complaint and an application for an order to show cause requesting, among other relief, that the court order Kim to submit to a complete competency examination. The Somerset County Surrogate returned the papers, advising that the application should be filed according to R. 4:86, and providing guidance for proper filing, including the need for two medical certifications. Instead, Lori filed a revised application which was still incomplete. The revised application included a certification from Dr. Rao regarding his incomplete evaluation.
The trial court never saw the initial application. Despite the deficient second set of pleadings, the court was concerned about whether a protective arrangement was needed. The court appointed counsel for Kim. Appointed counsel interviewed Kim and submitted a detailed report. The report concluded that there was no need for a protective arrangement, especially given Kim’s existing powers of attorney. Kim confirmed her preference for Joy to act as her agent.
The trial court held an expedited hearing. Lori and David’s attorney argued that Joy’s actions required Lori and David to have direct contact with Kim. Kim’s attorney stated that she found Kim to be “absolutely competent” and able to make decisions though, “certain things are fuzzy.” Id. at 2. The parties did not call any witnesses. Lori’s attorney stated that the court had “just heard about an hour’s worth of hearsay,” and “the one person who is not here, and I suggest should have been here, is Kim.” Id.
The trial judge noted that she had seen only a “partially completed application for a guardianship, with only a partial certification from one doctor, who then indicated that he had terminated his evaluation.” Id.
The judge explained that because she had some concern that there might be a vulnerable adult at risk, she appointed counsel to represent Kim, hoping that a report would illuminate what was happening and whether the court needed to intervene to protect a vulnerable individual. The court found, “based upon the documentation that has been provided, there is no need for a protective arrangement or a guardianship.” Id. The court denied Lori and David’s request to have direct access to Kim and denied the request to compel capacity evaluations.
On appeal, Lori and David argued that the Surrogate lacked authority to reject Lori’s initial filing. Id. at 3. The Appellate Division rejected that argument. “We disagree. R. 4:86-3A(a) requires that, prior to docketing, the Surrogate shall review the complaint to ensure that proper venue is laid and that it contains all information required by R. 4:86-2. This is exactly what the Surrogate did: the filing was rejected because on its face it failed to meet the requirements outlined above.” Id. The court continued, “Moreover, R. 4:86-4 (a)(1) provides, “If the court is satisfied with the sufficiency of the complaint and supporting affidavits and that further proceedings should be taken thereon, it shall enter an order fixing a date for hearing.” Id.
The Appellate Division noted that “The trial court judge stated she had not seen the first filing. If she had, she would have returned the incomplete application and directed Lori to file a proper pleading, as the Surrogate did.” Id.
The Appellate Division also affirmed the trial court’s ruling that there was no need for a capacity evaluation.
Finally, the Appellate Division affirmed the trial court’s decision to proceed without requiring Kim to appear. Lori and David argued that R. 4:86-5(c) required Kim to be there. The Appellate Division noted that the Rule provides “The plaintiff or appointed counsel shall produce the alleged incapacitated person at the hearing, unless the plaintiff and the court-appointed attorney certify that the alleged incapacitated person is unable to appear because of physical and mental incapacity.” Id. at 4.
Despite this, the Appellate Division affirmed the trial court’s decision to rule without requiring Kim to be there, concluding that “[b]ecause Kim prevailed based on initial procedural defect in the application, strict compliance with subsection (c) of the Rule was not implicated.” Id.