Powers of Attorney Not Honored and Guardian is Appointed Where Undue Influence Found

In the Matter of A.V.B., an Alleged Incapacitated Person, No. A-2863-20 (N.J. Super. Ct. App. Div. October 6, 2022)

This case was commenced by W.B. (Wayne) as a conservatorship action on behalf of his mother, A.V.B. (Angie).  V.B.D. (Vera), Angie’s daughter, filed an answer but did not raise any affirmative defenses.

The trial court appointed an attorney for Angie.  The court appointed attorney filed an interim report, which contained concerns supporting Wayne’s allegations of undue influence by Vera over Angie, including certain financial transactions Vera undertook as Angie’s attorney-in-fact.  Following the report, Vera agreed to prepare an accounting of all financial transactions taken as her mother’s attorney-in-fact.

After observing Angie over the course of a multi-day hearing, the trial court determined that Angie was not capable of consenting or objecting to the conservatorship and needed a guardian ad litem.  A guardian ad litem (Halm) was then appointed to arrange medical evaluations and file an independent report.  Notably, Halm was suggested by Vera’s counsel.

Halm retained two physicians to examine Angie.  Both physicians prepared reports concluding that Angie was unable to manage her own affairs and was mentally incompetent. Unable to proceed with the conservatorship action, Wayne filed a motion to amend his pleadings to seek the appointment of a guardian for Angie. Vera’s attorney conceded that the appointment of a guardian was necessary. Wayne’s motion was granted and the court, among other rulings, appointed Halm to act as Angie’s temporary guardian.

The parties then reached a proposed consent order providing for Vera’s appointment as the guardian of Angie’s person.  However, neither the consent order nor the parties separately addressed who should be appointed as guardian of Angie’s property.  Ultimately, the trial court appointed Vera as guardian of the person and further determined that Halm, as an independent professional, was to serve as Angie’s permanent guardian of the property. Importantly, the trial court specifically found that an independent professional guardian of the property was in Angie’s best interests due to “discord within the family unit, and the financial exploitation concerns expressed throughout the litigation . . . .”  Id. at pp. 8-9.

After the judgment appointing the guardians was entered, Vera appealed, arguing that the trial court: (1) failed to consider Angie’s previously executed powers of attorneys (in favor of Vera) in naming Halm as one of the guardians; and (2) should have dismissed the conservatorship action because Angie was unable to consent to it.

Regarding the guardianship issues and citing to In re Guardianship of Macak, 377 N.J. Super. 167, 176 (App. Div. 2005), the Appellate Division affirmed the trial court’s decision.  The appeals court found that Vera ignored the fact that she had agreed with the parties and court appointed professionals regarding Angie’s need for a guardian to manage her affairs. Based on Vera’s own agreement as to the guardianship appointments and her lack of challenge as to the guardian of the property at the trial level, Vera was judicially estopped from challenging Halm’s appointment on appeal.

In addition, the court found that Vera did “not seriously dispute that the parties settled the question of who should serve in the guardianship roles” but rather merely argued on appeal that the “settlement agreement was never reduced to writing.”  Ibid.  On this issue, the court found that the record clearly reflected the fact that the parties, including Vera, all agreed that an independent professional should share the guardianship duties.  Citing to Pascarella v. Bruck, 190 N.J. Super. 118, 125 (App. Div. 1983), the court ruled that in the circumstances of this matter, where the record clearly reflected the parties’ agreement as to the shared guardianship duties, it was not necessary for the parties to have reduced their agreement to writing.

As to the questions of the prior power of attorney appointments, the Appellate Division found that the trial court properly considered the evidence concerning Vera’s questionable use of her powers as attorney-in-fact for Angie, as well as the family discord, in determining the appropriateness of the appointment of an independent professional for Angie.

As to the question of the dismissal of the conservatorship action, given the issues of Angie’s capacity that arose during the conservatorship proceedings, the Appellate Division found that the trial court properly exercised its discretion in granting Wayne’s motion to amend his complaint to seek the appointment of a guardian for Angie.