RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3572-19

IN THE MATTER OF THE 

CIVIL COMMITMENT OF 

M.F.

_______________________

Argued December 2, 2020 – Decided June 8, 2021

Before Judges Alvarez, Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Law Division, Somerset County, Docket No. SOCC000001-06.

Thomas G. Hand, Assistant Deputy Public Defender, 

argued the cause for appellant M.F. (Joseph E. 

Krakora, Public Defender, attorney; Thomas G. Hand 

on the briefs).

Anthony J. Serra argued the cause for respondent W.

F. (Serra Law Group, attorneys; Anthony J. Serra on 

the brief). 

The opinion of the court was delivered by

MITTERHOFF, J.A.D.

M.F.'s assigned counsel appeals from a February 19, 2020 order granting 

M.F.'s legal guardian's application to intervene in M.F.'s involuntary 

APPROVED FOR PUBLICATION

June 8, 2021

APPELLATE DIVISION
A-3572-19 2

commitment proceedings.1 On appeal, M.F.'s counsel argues the guardian has 

not met the criteria for intervention under Rule 4:33-1 or Rule 4:33-2, and that 

the plain language of N.J.S.A. 30:4-27.12 precludes intervention as a matter of 

law. This case presents the issue of who is entitled to express a position on 

whether M.F., a gravely disabled patient involuntarily committed to a 

psychiatric hospital, continues to meet the statutory definition of 

dangerousness. The issue is complicated by the fact that M.F. is unable to 

express his preference due to his debilitating mental illness. 

Based upon the record and in light of the applicable law, we affirm the 

judge's order allowing the legal guardian to intervene, not to usurp assigned 

counsel's role, but to fulfill his separate duties to safeguard the welfare of his 

ward. Because M.F.'s views are not easily or readily ascertainable, however, 

and considering the sharp divergence of the views of the legal guardian and 

assigned counsel, we direct that on remand the judge appoint an attorney to 

serve as guardian ad litem for M.F., to conduct an investigation, and report his 

or her findings to the court. 

We derive a brief history of the onset and progression of M.F.'s mental 

illness and his ensuing long-term institutionalization from documents 

1

 The county adjuster took no position and is not participating in this appeal. 
A-3572-19 3

contained in the record.2 M.F. is a fifty-nine-year-old male who has been 

committed at Greystone Park Psychiatric Hospital in Morris Plains since 

January 25, 2012. A June 9, 2006 consultation report by Ross J. Baldessarini, 

M.D., indicates that M.F., then forty-five years old, had been institutionalized 

at Ancora State Psychiatric Hospital for three years, "following prolonged and 

slowly more disabling mental illness that started when he started college in 

[Pennsylvania] at age [eighteen]." 

M.F. exhibited no early warning signs of mental illness before his senior 

year in high school. To the contrary, prior to his senior year in high school, 

M.F. "did very well academically, socially, and athletically, . . . was an Astudent and National Merit Scholar, and was accepted by several prominent 

colleges, including Princeton," although he chose to matriculate at Villanova. 

In his senior year of high school, in what Dr. Baldessarini describes as a 

possible prodrome, M.F. began "behaving oddly and wanting to give away his 

belongings." More acute illness erupted in his first year at Villanova, 

manifested by "grandiose and religious delusions," "probable auditory 

2

 We recognize that the judge sustained an objection to the admission of the 

hearsay medical records to support the guardian's motion for reconsideration. 

We do not rely on them as evidential support of our decision whether the 

guardian may intervene. Rather, we discuss M.F.'s documented medical 

history merely to add context to the underlying dispute and the factual basis 

for some of the guardian's concerns. 
A-3572-19 4

hallucinations," and "very occasional episodes of explosive excitement with 

aggressive threats or actions" that persist to date. In his late twenties through 

his thirties, M.F. resided in group homes for psychiatric patients. He was 

transferred to long-term psychiatric hospitalization, however, after "a brief 

period of wandering and living in the streets in 2003."3

The doctor's impression at that time, based on history, medical records, 

and examination, was as follows:

This patient is suffering from a chronic and slowly 

progressive form of severe mental illness. Despite 

suggestive "manic" elements, he does not have a 

history of sustained elevations or of cyclic major 

changes in mood, and the previously suggested 

formulation of bipolar schizoaffective disorder seems 

less likely than a hebephrenic (disorganized) form of 

schizophrenia, though very distinct from other forms, 

and perhaps the least well studied therapeutically.4

In 2006, M.F. was adjudicated an incapacitated person, and M.F.'s 

brother, W.F., was appointed as his general co-guardian.5 Although there are 

no documents in the record evidencing M.F.'s initial involuntary commitment 

3

 A June 17, 2019 Greystone commitment review hearing report also notes as 

part of M.F.'s history that "[t]he patient eloped from a group home, [and] was 

found naked, eating out of dumpsters." 

4

 The remainder of the report contains recommended medication regimens. 

5 M.F.'s mother is the co-guardian.
A-3572-19 5

hearing, we infer that it occurred from the evidence in the record of the 

periodic reviews that followed.

We begin with a brief review of the relevant statutes and court rules, 

which guide our analysis. "A patient who is involuntarily committed to 

treatment . . . shall receive a court hearing with respect to the issue of 

continued need for involuntary commitment within 20 days from initial 

commitment . . . ." N.J.S.A. 30:4-27.12(a). Normally, "the assigned county 

counsel is responsible for presenting the case for the patient's involuntary 

commitment to the court, unless the county adjuster is licensed to practice law 

in this State, in which case the county adjuster shall present the case . . . ." 

N.J.S.A. 30:4-27.12(b). The patient has the right to be represented by an 

attorney, N.J.S.A. 30:4-27.11(c), must "have counsel present at the hearing[,] 

and shall not be permitted to appear at the hearing without counsel." N.J.S.A. 

30:4-27.12(d). "The patient, through counsel, shall have the right to present 

evidence and to cross-examine witnesses." R. 4:74-7(e).

Certain evidence must be presented at the hearing. The application for 

commitment shall be supported by the "testimony of a psychiatrist on the 

patient's treatment team who has conducted a personal examination of the 

patient as close to the court hearing date as possible, but in no event more than 

five calendar days prior to the court hearing." Ibid. The court may also order 
A-3572-19 6

any licensed psychologist who has examined the patient to appear and testify. 

Ibid. 

"The court shall enter an order authorizing involuntary commitment of 

the patient . . . if it finds, by clear and convincing evidence presented at the 

hearing that the patient is in need of continued involuntary commitment to 

treatment" because the "patient is mentally ill" and the "mental illness causes 

the patient to be dangerous to self or dangerous to others or property." R.

4:74-7(f)(1). Of relevance to this appeal: 

“Dangerous to self” means that by reason of mental 

illness the person has threatened or attempted suicide 

or serious bodily harm, or has behaved in such a 

manner as to indicate that the person is unable to 

satisfy his need for nourishment, essential medical 

care or shelter, so that it is probable that substantial 

bodily injury, serious physical harm, or death will 

result within the reasonably foreseeable future; 

however, no person shall be deemed to be unable to 

satisfy his need for nourishment, essential medical 

care, or shelter if he is able to satisfy such needs with 

the supervision and assistance of others who are 

willing and available. This determination shall take 

into account a person’s history, recent behavior, and 

any recent act, threat, or serious psychiatric 

deterioration.

[N.J.S.A. 30:4-27.2(h) (emphasis added).]

In so finding, the court must determine that "less restrictive alternative 

services are not appropriate or available to meet the patient's mental health 

care needs." R. 4:74-7(f)(1). 
A-3572-19 7

The court must then conduct "periodic reviews of the commitment." R.

4:74-7(f)(2). The court is required to conduct review hearings three times in 

the first year of commitment, followed by at least one review annually "if the 

patient is not sooner discharged." Ibid. Each review hearing follows the same 

procedure established for the initial involuntary commitment hearing, and if 

the court determines that involuntary commitment shall continue, "it shall 

execute a new order." Ibid. "If the court concludes at the review hearing that 

the evidence does not warrant continued commitment to treatment, it shall 

order that the patient be discharged." R. 4:74-7(h)(1). 

"If the [S]tate fails to establish each element essential to authorize 

further restrictions on the patient's liberty, the general rule requires discharge 

upon completion of discharge plans within forty-eight hours." In re

Commitment of M.C., 385 N.J. Super. 151, 160 (App. Div. 2006) (citing 

N.J.S.A. 30:4-27.15(b)). However, "[t]here are two narrow exceptions to the 

general rule." Ibid. 

The first exception, not applicable here, is release subject to conditions. 

Ibid. The second exception to the general rule is an "Order of Conditional 

Extension Pending Placement," or CEPP. R. 4:74-7(h)(2). Pursuant to Rule

4:74-7(h)(2), "if a patient otherwise entitled to discharge . . . cannot be 

immediately discharged due to the unavailability of an appropriate placement, 
A-3572-19 8

the court shall enter an order conditionally extending the patient's 

hospitalization and scheduling a placement review hearing within [sixty] days 

thereafter." Our Supreme Court first approved the "hybrid status" then 

referred to as "discharged pending placement," and now known as CEPP, in 

the case In re S.L., 94 N.J. 128, 133, 142 (1983). There, "the Court held that 

the [S]tate may continue to confine a person who is unable to 'survive 

independently outside the institution without some care and supervision.'" 

M.C., 385 N.J. Super. at 161 (quoting S.L., 94 N.J. at 132, 137, 139-40). 

Although Rule 4:74-7(h)(2) "refers to circumstances in which 'a patient 

cannot be immediately discharged due to the unavailability of an appropriate

placement,' [the Appellate Division] has looked to S.L. and limited the scope 

of this exception to those who are 'incapable of survival on their own.'" Id. at 

162 (quoting In re Commitment of G.G., 272 N.J. Super. 597, 604-05 (App. 

Div. 1994)). "Thus, CEPP is not a fallback option when the [S]tate cannot 

implement a discharge plan within forty-eight hours, and CEPP is not a means 

through which the judge may delay a conditional release." Ibid. An order 

placing a patient on CEPP must be supported by evidence that he or she is 

incapable of surviving discharge, not "subjective judgments about whether a 

patient who is entitled to discharge has desirable or optimal living 

arrangements and family relationships." Id. at 163-64. 
A-3572-19 9

In this case, it is undisputed that M.F. is incapable of survival on his 

own, and that he requires and will require a significant amount of care on an 

inpatient basis, including close monitoring of his medication and blood levels. 

It appears highly unlikely he will be "discharged" in a literal sense. Thus, 

there is no question he satisfies the statutory first prong of the "danger to self" 

standard applicable to the gravely disabled. Unfortunately, due to his serious 

condition, M.F. himself is unable to express a preference whether to remain at 

Greystone or step down to another type of facility, such as a nursing home or 

group home. M.F.'s counsel argues that M.F. no longer meets the statutory 

definition of dangerousness and that due process requires that he be discharged 

and placed in an alternative setting. M.F.'s brother and legal guardian 

successfully sought intervention to argue that M.F.'s placement at Greystone 

should continue because of the absence of a less restrictive setting that is able 

to meet M.F's needs. 

On June 12, 2019, Judge Louis Mellinger conducted a commitment 

review hearing for M.F. M.F.'s treating psychiatrist at Greystone, Dr. Svetlana 

Volskaya, testified that M.F. was "unable to take care of himself" and that the 

guardian "is in total agreement . . . that [Greystone is] the least restrictive 

place" for him. The doctor offered no discharge plan because, in her opinion, 

he was not appropriate for a group home setting and he was too young to be in 
A-3572-19 10

a nursing home. She believed he benefitted from activities at Greystone and 

that it was, for the time being, the least restrictive placement for M.F. No 

other witnesses testified at the hearing. 

The judge concluded that although from a "humanitarian" point of view, 

Greystone may be the least restrictive setting for M.F., from a due process 

perspective the county adjuster failed to demonstrate by clear and convincing 

evidence that M.F. presented a danger to himself, others, or property, N.J.S.A. 

30:4-27.2(m). Accordingly, the judge placed M.F. on CEPP status. See R.

4:74-7(h)(2). The judge also ordered that W.F. appear at the next hearing on 

October 2, 2019, to review discharge planning. 

Before that hearing could take place, the guardian moved for 

reconsideration of the June 12, 2019 order that placed M.F. on CEPP status. 

The guardian provided a certification which stated, in part, that it was in M.F.'s 

"best interest that he remain committed at Greystone and that releasing him to 

a different, less restrictive facility, would be detrimental to his well-being." 

On July 10, 2019, the judge heard arguments on the motion for 

reconsideration. M.F.'s attorney argued that the guardian did not have 

standing to file the motion because he was not a party in the matter. W.F. 

countered that, as the legal guardian for his brother, he was an interested party 

in the case. The judge agreed that "the guardian does have standing to bring a 
A-3572-19 11

motion" because the "guardian stands absolutely in the shoes of the patient." 

Despite this pronouncement, the judge carried the matter for two weeks to 

allow Greystone to determine whether it would re-screen M.F. for recommitment, thus obviating the need to decide the motion for reconsideration. 

On July 24, 2019, the judge again heard arguments on the motion for 

reconsideration. The guardian advised the judge that recommitment was 

abandoned in favor of pursuing reconsideration of the June 12, 2019 order. At 

this point, the judge observed that: 

I don't know that the guardian has standing . . . to be 

heard with regard to whether the patient should be 

moved to CEPP status or kept in committed status. 

That's not a province of the guardian. The province of 

the guardian is . . . to protect the patient's interest as to 

perhaps where they're going to be placed, or as to 

treatment that's going to be resolved beyond the 

hospital, or even issues involving the patient while at 

the hospital, but not as to whether the patient is in 

committed status or not. The guardian doesn't have 

input or expert testimony as to whether the patient is 

in committed status. That's the province of the 

doctors and other experts.

So, I don’t know that the guardian [has] 

standing 

. . . . 

Unfortunately, the judge never definitively resolved the issue of standing until 

February 19, 2020. 
A-3572-19 12

Meanwhile, M.F. remained on CEPP status between June and December 

2019. While on CEPP status, M.F. was considered for, and ultimately rejected 

from, A-Plus Group Home because they could not accommodate his level of 

care. The record does not reflect whether other placements were considered in 

this time frame.

The judge, however, tacitly approved the guardian's intervention on 

December 11, 2019. He allowed "the guardian to participate through counsel 

in any further civil commitment hearings," thus permitting "the guardian to 

aver the guardian's position, either through evidence, witnesses, [or] closing 

statements." The judge ordered that M.F. could not be discharged from CEPP 

status without further application to the court. The judge set a February 19, 

2020 hearing date. 

In the interim, on December 26, 2019, M.F. was involved in an incident 

where he struck another patient at Greystone in the face and, consequently, 

Greystone filed for M.F.'s recommitment. A commitment review hearing was 

ordered to take place on January 8, 2020. 

At that hearing, Dr. Volskaya testified that M.F. remained a danger to 

others based on the assault. She also testified that M.F. was a danger to 

himself because of his high creatinine levels, which require close monitoring. 

Dr. Volskaya indicated that in October she reduced M.F.'s lithium dosage 
A-3572-19 13

because of his elevated creatinine levels. Dr. Volskaya opined that the 

December 26, 2019 incident was causally related to the dosage change. The 

guardian's attorney was permitted to cross-examine Dr. Volskaya over M.F.'s 

assigned counsel's objection. The judge overruled the objection on the 

grounds that he previously found "the guardian stands in the shoes of the 

patient" and has an interest in the welfare of the patient. The judge ultimately 

determined that continuing commitment was necessary because the county 

adjuster proved, by clear and convincing evidence, that M.F. was a danger to 

others based on the short period of time since the December 26, 2019 

incident.6 

On February 19, 2020, the judge heard arguments on M.F.'s assigned 

counsel's motion to bar the participation of the guardian and the guardian's 

cross-motion to participate. The judge held that the guardian established the 

criteria for intervention under Rule 4:33-1 and was permitted to participate in 

the proceedings: 

the criteria has been met for intervention. The 

guardian stands in the shoes of the ward and is 

charged with the duties and responsibilities under the 

guardian statute; (2) has the right under the guardian 

statute and duty to protect the best interest and well6

 The January 8, 2020 order is the subject of an appeal pending under Docket 

No. A-2737-19, also decided today. 
A-3572-19 14

being of the ward, and medically also under the 

guardian statute; (3) the guardian asserts that the 

ward's interest is not adequately protected because he 

disagrees with the public defender and asserts that . . . 

Greystone is the best and safest environment for the 

ward and asserts the potential danger with regard to 

the [neuroleptic malignant] syndrome,7and the ward 

has only known Greystone since 2012 – these are all 

legitimate concerns and empowered under the 

guardian statute; and (4) a timely application to 

intervene must be made.

The judge issued an accompanying written order mirroring his oral decision. 

On appeal, M.F.'s assigned counsel raises the following issues for our 

consideration: 

POINT I

THE TRIAL COURT'S DECISION TO ALLOW 

M.F.'S GUARDIAN TO INTERVENE IN THIS 

MATTER MUST BE REVERSED BECAUSE M.F.'S 

GUARDIAN FAILED TO SATISFY THE 

REQUIREMENTS FOR INTERVENTION AS 

REQUIRED BY THE COURT RULES, THE 

CONSTITUTION[,] AND CASE LAW[,] AND HIS 

INTERVENTION HAS AND WILL CONTINUE TO 

HARM M.F. 

A. THE TRIAL COURT ERRED AS A 

MATTER OF LAW WHEN IT MISAPPLIED 

7

 According to the National Institute of Neurological Disorders and Stroke, 

neuroleptic malignant syndrome "is a life-threatening, neurological disorder 

most often caused by an adverse reaction to neuroleptic or antipsychotic 

drugs." Neuroleptic Malignant Syndrome Info. Page, Nat'l Inst. of Health, 

https://www.ninds.nih.gov/Disorders/All-Disorders/Neuroleptic-MalignantSyndrome-Information-Page. 
A-3572-19 15

THE COURT RULES TO ALLOW THE 

GUARDIAN TO INTERVENE IN THIS CIVIL 

COMMITMENT AND PROSECUTE THE 

ACTION FOR CIVIL COMMITMENT, A 

POWER WHICH ONLY RESIDES WITH THE 

STATE. 

B. THE TRIAL COURT ERRED AS A 

MATTER OF LAW WHEN IT IGNORED THE 

CLEAR AND UNAMBIGUOUS LANGUAGE 

OF N.J.S.A. 30:4-27.12 TO GRANT THE 

GUARDIAN THE AUTHORITY TO 

INTERVENE IN THE CIVIL COMMITMENT 

PROCEEDING AND CO-PROSECUTE 

COMMITMENT OF HIS WARD BY 

PRESENTATION OF HIS OWN WITNESSES. 

C. THE TRIAL COURT ABUSED ITS 

DISCRETION WHEN IT GRANTED THE 

GUARDIAN PERMISSION TO INTERVENE 

IN THIS MATTER AND THE GUARDIAN'S 

INTERVENTION HAS AND WILL 

CONTINUE TO HARM M.F. 

We reject M.F.'s argument that N.J.S.A. 30:4-27.12 categorically 

precludes the guardian from intervening in his ward's commitment hearing. 

"When construing a statute, our primary goal is to discern the meaning and 

intent of the Legislature." State v. Gandhi, 201 N.J. 161, 176 (2010). "To 

determine that intent, 'we look first to the plain language of the statute, seeking 

further guidance only to the extent that the Legislature's intent cannot be 

derived from the words that it has chosen.'" McGovern v. Rutgers, 211 N.J. 

94, 108 (2012) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 
A-3572-19 16

(2009)). When a statute's plain language is clear, our interpretative task is 

complete. In re Kollman, 210 N.J. 557, 568 (2012) (citing N.J. Ass'n of Sch. 

Adm'rs v. Schundler, 211 N.J. 535, 549 (2012)). 

N.J.S.A. 30:4-27.12 reads, in part, that: 

b. Except as provided in subsection c of this section, 

the assigned county counsel is responsible for 

presenting the case for the patient’s involuntary 

commitment to the court, unless the county adjuster is 

licensed to practice law in this State, in which case the 

county adjuster shall present the case for the patient’s 

involuntary commitment to the court.

c. Notwithstanding the provisions of subsection b. of 

this section and upon notice to the county adjuster:

(1) The Attorney General, or the county 

prosecutor acting at the request of the Attorney 

General, may supersede the county counsel or 

county adjuster and assume responsibility for 

presenting any case for involuntary commitment 

to treatment or may elect to participate with the 

county counsel or county adjuster in presenting 

any such case; and

(2) The county prosecutor may supersede the 

county counsel or county adjuster and assume 

responsibility for presenting any case for 

involuntary commitment to treatment initiated 

by the county prosecutor pursuant to subsection 

c. of section 10 of P.L.1987, c.116 (C.30:4-

27.10) or may elect to participate with the 

county counsel in the presentation of any such 

case.
A-3572-19 17

M.F.'s assigned counsel has steadfastly adhered to the view that because 

the statute specifically names the county adjuster, prosecutor, or Attorney 

General as persons entitled to present a case for commitment, the guardian has 

no role in the matter because he cannot subsume the role of the prosecuting 

authority. Although we agree W.F. cannot subsume the county adjuster's role 

in presenting the case, the statute does not expressly prohibit the intervention 

of the legal guardian for other purposes. As the judge recognized, the guardian 

owes a duty to M.F. to safeguard his well-being and protect his best interests 

particularly where, as here, the "wishes of the ward are not ascertainable with 

reasonable efforts." N.J.S.A. 3B:12-56(d). 

We also reject M.F.'s counsel's argument that the judge abused his 

discretion in allowing W.F. to intervene. Rule 4:33-2, in pertinent part, states 

that "anyone may be permitted to intervene in an action if the claim or defense 

and the main action have a question of law or fact in common." Because Rule

4:33-2 is "the more liberal permissive intervention rule," we must "review the 

court's determination of a permissive intervention motion under an abuse of 

discretion standard." N.J. Dep't of Env't Prot. v. Exxon Mobil Corp., 453 N.J. 

Super. 272, 286-87 (App. Div. 2018) (citing City of Asbury Park v. Asbury 

Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006)). 
A-3572-19 18

M.F.'s serious condition, which is undisputed, requires significant 

institutional care and supervision. His diagnosis of schizophrenia, 

disorganized type, is complicated by a history of neuroleptic malignant 

syndrome, which according to his treating doctors is triggered by changes in 

his environment.8 Indeed, M.F. was rejected from one facility because they 

could not accommodate his level of care. Because the gravity of his condition 

also means he cannot communicate his wishes or desires, it is the guardian's 

statutorily vested duty to exercise M.F.'s rights in a manner consistent with his 

best interests. N.J.S.A. 3B:12-56(d). Mindful of these unique circumstances, 

8

 A June 2019 commitment review report described the nature of this 

condition:

The patient does not tolerate changes in environment 

well. When he was transferred from Hagedorn to 

Greystone Park Psychiatric Hospital in 2012, several 

times he developed neuroleptic malignant syndrome 

(which is potentially a deadly condition, which requires 

all antipsychotics to be stopped). As a result of that, he 

developed severe psychosis with paranoia and became 

very assaultive, had to be transferred to a different unit in 

order to stabilize him. It took the patient [a] very long 

time to decrease psychosis and improved ADL's, but not 

to the level he had before his transfer to Greystone Park 

Psychiatric Hospital. He remains in active treatment. 

Recently lithium was decreased because of the side 

effects of increase in creatinine. 
A-3572-19 19

we conclude that it was not an abuse of discretion to permit the guardian to 

intervene in this matter on behalf of his ward.

We note that the judge had considered appointing a guardian ad litem for 

M.F. Pursuant to Rule 4:86-4(d), the court may appoint a guardian ad litem 

"in addition to counsel . . . to evaluate the best interests of the alleged 

incapacitated person and to present that evaluation to the court," though such 

appointments are reserved for "special circumstances." In addition, Rule 4:26-

2, "which governs the appointment of a guardian to represent the interest of an 

infant or incompetent person in the context of a particular litigation . . . ." In 

re Clark, 212 N.J. Super. 408, 412 (Ch. Div. 1986), 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 appointed by the 

court . . . .

[Rule 4:26-2(a)].

Our Supreme Court discussed the distinct nature of the roles of assigned 

counsel and a guardian ad litem in the case In re M.R., 135 N.J. 155, 172-78 

(1994), involving a developmentally disabled young woman's specific capacity 

to choose where to live. M.R.'s father argued "that the hearing was unfair 

because M.R.'s appointed counsel did not zealously advocate her stated 
A-3572-19 20

preference to live with him." Id. at 172. Pursuant to the version of Rule 4:86-

4 in effect at the time – which neither required counsel to argue the alleged 

incompetent's stated preferences, nor permitted the appointment of a guardian 

ad litem in some cases – M.R.'s attorney recommended that M.R.'s preference 

should not be given significant weight, and that "either household would serve 

M.R.'s best interests." Id. at 173. The question, the Court said, was "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." Id. at 172. 

Looking to "the analogous context of child-custody cases," in which a 

court normally appoints counsel to represent the child and a guardian ad litem 

to conduct independent factfinding and make a recommendation based on the 

child's best interests, id. at 173-74, the Court explained:

In sum, several reasons support the distinction 

between an attorney and a guardian ad litem for an 

incompetent. First, the attorney and guardian ad litem 

may take different positions, with the attorney 

advocating a result consistent with the incompetent's 

preferences and the guardian urging a result that is 

different but in the incompetent's best interests. 

Second, the attorney and guardian may differ in their 

approaches. When interviewing interested parties, the 

attorney for an incompetent should proceed through 

counsel, but often a guardian ad litem may 

communicate directly with other parties. Finally, a 

guardian may merely file a report with the court, but 
A-3572-19 21

the attorney should zealously advocate the client's 

cause.

[Id. at 175.]

The Court concluded that not "every case [would] require both in the future,"

but that in some cases, "an incompetent, like a minor, may need both an

attorney and a guardian ad litem." Ibid. Accordingly, the Court stated that on

remand, M.R.'s "attorney's role should be to advocate her choice, as long as it

does not pose unreasonable risks for her health, safety, and welfare," and that

"[i]f the court concludes that M.R. is incapable of deciding where to live, it

may appoint a guardian ad litem to represent her best interests." Id. at 178. 

In this case, M.F. is incapable of communicating his own wishes or 

desires to his counsel. Thus, counsel is merely reporting to the court his 

perception of what is in his client's best interests. Under those circumstances, 

M.R. directs that appointment of a guardian ad litem for an adult incompetent 

may be appropriate. Ibid. 

We conclude that "special circumstances" exist to appoint a guardian ad 

litem given M.F's inability to communicate with assigned counsel. R. 4:86-

4(d). We also conclude that good cause exists due to the sharply divergent 

views giving rise to a conflict between M.F.'s guardian and his assigned 

counsel, R. 4:26-2(a), which likewise warrants the appointment of a guardian 
A-3572-19 22

ad litem on behalf of M.F. to make decisions or recommendations to the court 

guided by the best interest standard. 

To the extent we have not addressed any of the remaining arguments 

raised by the parties, we conclude they are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.