IN THE MATTER OF FLORENCE SIEGAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6035-06T26256-06T3

IN THE MATTER OF

FLORENCE SIEGAL,

An Incapacitated Person.

_______________________________________

 

Argued June 4, 2008 - Decided

Before Judges Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Union County, Docket No. 07520.

Howard Brookman, appellant, argued the cause pro se.

Jeffrey Brookman, appellant, argued the cause pro se.

Joel C. Seltzer argued the cause for appellant Barbara Brookman.

Michael J. Dolan, Associate Counsel, argued the cause for respondent Florence Siegal (Edward H. Tetelman, Acting Public Guardian for Elderly Adults of New Jersey, attorney; Mr. Dolan, of counsel and on the brief).

PER CURIAM

Appellants Barbara Brookman (Barbara), Jeffrey Brookman (Jeffrey) and Howard Brookman (Howard) appeal from the Judgment of Incapacity and Order Appointing Guardian of July 5, 2007, adjudging Florence Siegel (Florence) an incapacitated person and ordering other relief. Because we conclude that appellants lack standing to bring this appeal, we dismiss.

The following facts are summarized from the transcript of the hearing on June 21, 2007, certain documents in appellants' appendix and the parties' briefs. Florence is 92 years old. She is a widow and has no children. She purportedly is a close friend of appellants. In November 2000, Florence executed a Power of Attorney (POA) to appellants. She also executed a Proxy Directive (Proxy), appointing Barbara as her health care representative and Howard and Jeffrey as alternates. Florence resided in Bayonne at the time she executed the POA and Proxy. Sometime thereafter, she began living in Barbara's home in Hillside.

On May 9, 2007, at approximately 10:30 p.m., Barbara placed an emergency call for medical assistance for Florence. The Hillside Police Department and Hillside Fire and Rescue Unit responded. A police officer reported that upon arrival, Barbara and Jeffrey led them to Florence's bedroom where they discovered the elderly woman lying on a garbage bag in a fetal position wrapped in a blanket and wearing a filthy sweater. Florence had a large bed sore on each buttock by her inner thigh and a large reddish rash. She was conscious but unresponsive to questions. The bedroom smelled of urine, and its floors were cluttered with debris.

The officer also reported that Barbara and Jeffrey became uncooperative, and were arrested and charged with neglect of the elderly, contrary to N.J.S.A. 2C:24-8. Barbara was also charged with resisting arrest, contrary to N.J.S.A. 2C:29-2. Howard arrived at the scene, was advised of the situation, and was repeatedly instructed not to interfere. He did not comply and was arrested and charged with obstruction of justice, contrary to N.J.S.A. 2C:29-1, and hindering apprehension, contrary to N.J.S.A. 2C:29-3.

Florence was taken to Newark Beth Israel Hospital, where she was admitted on May 10, 2007. According to Guzman, Florence was "in terrible physical condition," she "was unkempt and extremely dirty and foul-smelling[]", and she "suffered from multiple decubitus ulcers and was dehydrated and malnourished." Guzman also reported that the Brookmans were uncooperative when asked about Florence's assets and income sources. Guzman recommended the appointment of a guardian and discharge to a nursing home.

Florence's treating physician later diagnosed her with multiple stage three decubitus ulcers in her right hip and feet, contractures, advanced dementia, a hematoma or sore on her right shin, dehydration, malnutrition, and hypothyroidism. The doctor also determined that Florence was incapable of understanding her medical prognosis; unable to make medical decisions or manage her financial, social and medical affairs; she was non-ambulatory; and she was incapable of attending, comprehending or participating in a hearing. A psychiatrist also diagnosed Florence with dementia and determined she was incapable of self-care. Both doctors recommended the appointment of a guardian.

On May 24, 2007, the hospital filed a verified complaint and supporting certifications, seeking the adjudication of Florence as mentally incapacitated and the appointment of a guardian. An order was entered on May 25, 2007, suspending the POA and Proxy and appointing the Office of the Public Guardian for Elderly Adults (Public Guardian) as temporary guardian. An order for a hearing was also entered, setting June 21, 2007 as the hearing date, and requiring as follows:

ORDERED, that any interested person who desires to be heard in this action either personally or through legal counsel shall, not later than five (5) days before the hearing date, serve upon counsel for the Petitioner and file with this Court such interested person's answer and/or opposing certification. This action may proceed ex parte with respect to all such interested persons so defaulting[.]

On or about May 30, 2007, the Brookmans were served with both orders and the verified complaint. They did not file an answer or opposing certification, but they attended the hearing on June 21, 2007. Barbara's counsel advised the trial judge that he only represented Barbara in the criminal matter, and they were not at the hearing to participate but "only . . . to hear and monitor this case." The judge acknowledged that the Brookmans had an interest "in . . . observing the proceedings," but concluded that they were not parties because they did not file any application to join in the proceeding. Nevertheless, the judge permitted Barbara to "simply express [her] point of view to the court as a, [] courtesy to [her], but [she's] not a party to the case." The judge found there was clear and convincing evidence that Florence was not capable of managing her affairs and required a guardian. He appointed the Public Guardian to serve as her guardian.

On June 26, 2007, the judge received an unsigned certification purportedly from Barbara opposing the appointment of a guardian. It is unclear from the record whether the judge considered the certification; however, he could not do so. See Costantino v. N.J. Merit Sys. Bd., 313 N.J. Super. 212, 221 (App. Div.), certif. denied, 157 N.J. 544 (1998) ("[u]nsigned and unsworn extra-judicial statements" must be "reiterated, adopted, or reaffirmed under oath."). Nevertheless, the judge entered an order on July 5, 2007, adjudicating Florence an incapacitated person and appointing a guardian. The judge also required the Brookmans to submit a formal accounting of Florence's assets and income. This appeal followed.

Rule 4:86-5 states if "any person receiving notice of the hearing intends to appear by an attorney, such person shall, not later than five days before the hearing, serve and file an answer to the complaint." (Emphasis added.) The Brookmans did not file an answer to the complaint or comply with the order requiring them to do so. Thus, they were not parties to the guardianship action. Accordingly, they lack standing to bring this appeal.

Appeal dismissed.

Howard is a licensed New Jersey attorney.

We grant respondent's motion to strike portions of appellants' appendix and deny appellants' cross-motion to supplement the record. Accordingly, we did not consider Exhibits Pa126 to 137, Pa140 to 146, and Pa147-152.

The police took pictures of the scene, which were not included in the appendix. However, those pictures were apparently attached to the Certification of Amelia Guzman, R.N. (Guzman), submitted to the trial judge.

The charge against Jeffrey was subsequently dismissed. The charges against Barbara and Howard are pending.

The police charged Howard with hindering apprehension because he gave them conflicting residence and employment information.

As of the date of oral argument, no accounting has been submitted.

(continued)

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A-6256-06T3

June 27, 2008