In re M.R., 135 N.J. 155 (1994)

The New Jersey Supreme Court explains that court-appointed counsel for an alleged incapacitated person has a duty to act as “a zealous advocate for the wishes of the client” and advocate a result that is consistent with the client’s preferences, rather than the client’s best interests.

The 1994 New Jersey Supreme Court case of In re M.R., 135 N.J. 155 (1994) considered “whether a developmentally-disabled woman who is generally incompetent bears the burden of proof that she has the specific capacity to choose with which of her divorced parents she will live.”

M.R. was a 21-year-old woman with Down syndrome. After M.R. expressed her desire to move out of her mother’s home and into her father’s home, her mother instituted a guardianship action. After M.R. had been found to be “incapable of governing herself and managing her affairs,” her father appealed the appointment of her mother as guardian, and sought to have the daughter reside with him. During the guardianship proceeding, M.R. was represented by a court-appointed attorney. The issue was whether M.R. had the specific capacity to express her preference to reside with her father.

At trial, the lower court had concluded that the father bore the burden of proving that M.R. retained the specific capacity to decide where she wished to live. On appeal, however, our Supreme Court concluded that, because her mother was challenging M.R.’s capacity to decide her place of residence, her mother should bear the burden of proving that M.R. was specifically incapacitated with respect to this limited area, by clear and convincing evidence. (Notably, the M.R. Court recognized that, as of the time that its decision was rendered, New Jersey had not adopted those portions of the Uniform Probate Code that allowed for limited, rather than general, guardianships.)

As the M.R. Court reasoned,

Unless they endanger themselves or others, competent people ordinarily can choose what they want, even if their choices are irrational or dangerous. Traditionally, however, courts have tempered the right of self-determination of incompetent people with concerns for their best interests. The paradox with incompetent people is to preserve as much as possible their right of self-determination while discharging the judicial responsibility to protect their best interests.

With this in mind, the Court remanded the case back to the Chancery Division, for reconsideration in light of standards set forth in the Supreme Court opinion.

During the course of its analysis, the M.R. Court examined the actions of M.R.’s court-appointed counsel. M.R.’s father had claimed that the court-appointed counsel failed to zealously advocate M.R.’s stated preference to live with her father. The Court framed the resulting issue as “whether the role of appointed counsel for an incompetent is zealously to advocate the incompetent’s position or simply to inform the court of counsel’s perception of the incompetent’s best interests.”

In contrasting the role of court-appointed attorney with that of a guardian ad litem, the M.R. Court quoted the Supreme Court Judiciary Surrogates Liaison Committee and Civil Practice Committee Guidelines for Attorneys, which stated that,

[t]he role of the representative attorney is entirely different from that of a guardian ad litem. The representative attorney is a zealous advocate for the wishes of the client. The guardian ad litem evaluates for himself or herself what is in the best interests of his or her client-ward and then represent[s] the client-ward in accordance with that judgment.

The M.R. Court went on to conclude,

Ordinarily, an attorney should “abide by [the] client’s decisions concerning the objectives of representation,” R.P.C. 1.2(a), and “act with reasonable diligence ... in representing [the] client,” R.P.C. 1.3. The attorney’s role is not to determine whether the client is competent to make a decision, but to advocate the decision that the client makes. That role, however, does not extend to advocating decisions that are patently absurd or that pose an undue risk of harm to the client.

Thus, while the attorney generally should advocate the client’s preferences, “upon perceiving a conflict between that person’s preferences and best interests, the attorney may inform the court of the possible need for a guardian ad litem.”

The M.R. decision was founded upon the recognition that,

Advocacy that is diluted by excessive concern for the client’s best interests would raise troubling questions for attorneys in an adversarial system. An attorney proceeds without well-defined standards if he or she forsakes a client’s instructions for the attorney’s perception of the client’s best interests.