What If, During My Divorce, My Spouse Becomes Incapacitated?

Recently, my office faced a complex situation in which our client became incapacitated while the divorce action was still pending in the Family Part of the Superior Court of New Jersey. Presently, family members are taking action to have a court-appointed guardian designated so the divorce may either proceed or be voluntarily dismissed. The lead attorney on this multifaceted case is Molly Turpin, Esq., an outstanding and up-and-coming sensation in New Jersey divorce and family law with my law firm. Following please find Ms. Turpin’s comprehensive analysis of this complicated area of New Jersey divorce law.


An attorney acting as an advocate is presented with a difficult situation when he or she believes that the client which he or she has been retained to represent has a psychiatric disorder or questions whether the client truly comprehends the gravity of the legal issues presented or the advice offered by the counsel. For example, it is not uncommon that an attorney is retained by a seemingly coherent individual, but it later becomes apparent that said client is suffering from some disorder which limits his comprehension, either due to some subsequent related issue, or an issue unnoticed at the time of being retained. The attorney must then evaluate the propriety of his or her representation, and what steps should be taken to ensure the client is represented adequately while being mindful of the ethical considerations involved.

The New Jersey Rules of Professional Conduct address this issue. Rule 1.14 addresses circumstances such as these and offers specific guidance. The Rule states generally that when a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because the client is under the age of majority, is mentally disabled, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

In fact, a lawyer may only seek the appointment of a guardian, or take other protective action with respect to the client, when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.

This is not always a clear and concise decision for the attorney, the key verbiage in the Rule hinges on what the attorney otherwise “reasonably” believes. Accordingly, while an attorney should continue to represent the impaired client in the same fashion as he or she would if the client was not impaired, the attorney may seek the appointment of a guardian if it is reasonably believed that the client cannot act in his or her own interest, despite the advice given by the attorney.

Once the decision is made by the attorney that he or she reasonably believes that a guardian should be appointed, an application must be made with the Probate Court where a Judge will make a determination as to the appropriateness of the appointment of a guardian or a guardian ad litem. There is a distinction between the two.

Guardian ad Litem

A guardian ad litem literally means a guardian “for the litigation”.   The purpose of the guardian ad litem Rule is to protect the interests of the client’s ward in respect of litigation. The guardian ad litem does not represent the incapacitated person as would an attorney; rather, the guardian ad litem is charged with making decisions on behalf of the ward, as counseled by the ward’s attorney of record and consistent with the ward’s best interests

Applications for the appointment of a Guardian ad litem are governed by N.J. Ct. Rule 4:26-2(a), which provides that “a minor or mentally incapacitated person shall be represented in an action by the guardian of either the person or the property, appointed in this State, or if no such guardian has been appointed or a conflict of interest exists between guardian and ward, or for other good cause, by a guardian ad litem”. The Rule also outlines the methods by which a guardian ad litem may be appointed. It is not only a representing attorney who may take this step. According to the rule, it may be “upon the verified petition of a friend on his or her behalf”, appointment on a party’s motion, or appointment on the Court’s motion.

The petitioner, whether it is the individual’s acting counsel in a pending litigation, a friend, or the Court, does not need to prove the client’s incompetency. A guardian ad litem may be appointed upon a mere allegation that the individual is not competent.  Accordingly, “the guardian ad litem’s responsibility is to advise the Court as to whether a formal competency hearing may be necessary and if so, to represent the alleged mentally incapacitated person at that hearing”.  See Pressler, Current N.J. Court Rules, Comment R. 4:26-2, (GANN).

Formal Guardian

Unlike a guardian ad litem, who is appointed only for purposes of the litigation, the guardian is vested with control and responsibility over either the client’s property and/or person until either relieved of said duties by the Court or the return to full or partial capacity.  N.J. Ct. Rule 4:86-7.

Applications for formal guardianship, are governed by N.J. Court Rule 4:86.  The Rule provides that guardianship proceedings are commenced upon a verified complaint being filed, an affidavit attesting to all of the property of the alleged incompetent, and an affidavit of two physicians that have examined the alleged incompetent. N.J. Ct. Rule 4:86-1; N.J. Ct. Rule 4:86-2. If satisfied with the pleadings, the Court will set an order for a hearing, upon notice to certain persons involved. The Court shall then determine the issue of incapacity on the hearing date, either by taking testimony or upon the affidavits submitted with the pleadings as outlined above (i.e. the affidavits of two physicians that have examined the alleged incompetent individual).  N.J. Ct. Rule 4:86-6(d). If satisfied that the individual is in fact incompetent, the Court will issue letters of guardianship to the incompetent’s spouse, or, if no spouse, to the incapacitated person’s next of kin, or, if there are no next of kin, to the Office of the Public Guardian for Elderly Adults.  The guardian is thereafter charged with issuing reports to the County Surrogate concerning the incapacitated person’s property, health and welfare.  N.J. Ct. Rule 4:86-6(d).

It is most common that the attorney who is faced with this dilemma first seeks the appointment of a guardian ad litem in an effort to ensure the client’s interests are protected during the litigation at issue. Visiting our incapacitated client may be required to make this ultimate determination. Thereafter, the guardian at litem, if appointed, is then the one who determines the need for the appointment of a formal guardian. If granted, the guardian shall make all decisions on behalf of our client.

If you or a loved one faces a similar situation, please contact our office to learn more about how we may be of help. Thank you.