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In the Matter of the GUARDIANSHIP of Walter J. MACAK.

As was said in a trial brief I filed on May 24, 2005, Walter was an eighty-four-year-old man with a gentle disposition and an agreeable nature. He had committed no crime, yet he would have greater freedom and rights if he were in jail, than if his life were controlled by a guardian. 

For most of his life he was a teacher. He was also a craftsman who built his own home. His passion was collecting Americana. He lived a simple and decent life with his wife (who died before his case came about), also a teacher, whom he treasured, and their only daughter for whom he cared and who he trusted. 

Through careful savings, and family real estate transactions, as well as professional endeavors, he accumulated an estate of greater than $1,000,000 above and beyond the value of his home. He had pensions that covered his living costs, even those that would be imposed by a nursing home. 

His wife died from cancer, leaving him alone and lonely. He continued to see friends. He continued to run and manage trips for gambling and shows to Atlantic City for the benefit of a local service club. He remained involved in his church. These activities and involvement satisfied his social needs. 

In 2002 his daughter suggested to him that he consider an alternative living arrangement. She said she had become concerned that he lived alone. She said he needed assistance that she could not provide. She was concerned that he took pleasure in entering contests and sweepstakes that he learned about through the mail, and that he spent money to enter. None of her expressed concerns were ever proven through court testimony, although they appear to be the basis of her obtaining medical testimony supporting her position that her father needed assistance. 

Walter was concerned for his daughter that she be able to maintain the flexibility required to get a strong start in a new job. She was already past fifty years old. He did not want her to worry about him. He did not believe he needed regular care, and he did not want a guardian. He agreed to a temporary arrangement whereby a woman would assist him with some decisions about his finances and daily living. 

In effect, he consented to a settlement in the case brought by his daughter, in which settlement he agreed that he was not competent to manage his own affairs and make his own decisions. 

A women was appointed to be his guardian. She had been the Court appointed guardian ad litem in the proceeding his daughter had initiated. She refused to accept the appointment unless he left his home and moved to an assisted living facility. He agreed to move, with the expectation that once his daughter settled into her job he would return to his home. 

He found himself with a guardian, the implication of which he did not understand. He did not realize, or have explained to him, the rights that he would forego, the fact that he would never again be able to make independent decisions on how to spend his money, or whether to write a will, or to marry or vote. Walter was not aware that he would never again live in his home except by consent of a guardian, a person who the record shows did not want to return him to his beloved home. 

No hearing was conducted, no record was made and thus, there is no way to know whether his daughter, the plaintiff, accepted his expressed wishes and his rights were responsibly advanced in the settlement. It was apparent they were not. A lawyer representing Walter did not obtain an independent expert to evaluate him as to his competency. 

It is clear that Walter changed lawyers during the proceeding because he was not satisfied with the services of his first lawyer. It is not clear (because there is no record) as to what his second lawyer, told him would be the impact of the settlement proposed. It is clear that she did not obtain the services of a qualified doctor to examine him to measure independently his capacity to govern himself. Apparently she relied on the doctors chosen by the daughter, doctors who had an adverse interest to that of her father, but advanced the cause of the daughter.. 

Once Walter realized the arrangement to which he agreed was considered permanent, he became distressed and asked friends for help. Through one of those friends Walter was introduced to our office. 

The first step was to find a doctor who examined Walter and concluded that he was competent to retain counsel and that he did not require a full guardian. The cost of the examination was underwritten by a friend of Walter because the guardian would not make money that belonged to Walter available to pay an independent doctor. One can only conclude the guardian did not want to risk losing her position of controlling his money and his life, or the loss of fees she would earn.

In the context of Walter's Complaint to Restore Competency and Appoint a Conservator, rather than a guardian, on the guardian's motion for summary judgment, the trial judge granted the guardian's motion, reaffirming his earlier decision as to plaintiff's capacity. 

In the weeks and months that followed, the guardian would deprive him of the opportunity to review his mail, fail to apprise him of the state of his substantial assets, interfere with his relationship with his attorneys, strenuously resist efforts to permit plaintiff to visit his home, neglect plaintiff's home in ways that included allowing mold to grow on the interior walls, and dispose of plaintiff's belongings, including some of his Americana, placing the remainder in a storage facility the location of which was not revealed to Walter or his counsel. 

During that same time period, the independent doctor reexamined Walter and concluded yet again that he did not require a plenary guardian. In addition, he was examined by a second independent doctor, also a medical doctor whose conclusion was consistent with that of the first. Both doctors were specialists in the field of Geriatric Psychiatry. They did conclude that he had early stage Alzheimer's disease. 

On multiple occasions the guardian refused to consent to a new hearing for Walter: For example, at an Appellate Division's pre-argument conference before a Judge, who recommended that she consent to a new hearing, and following a status conference in which a judge gave the guardian the option of consenting to a new hearing or working to return plaintiff to his home, she again refused the hearing alternative and did nothing to return him to his home. 

In January 2004 the original Judge asked if anyone objected to the guardian rehabilitating Walter's home. No one did. Costs were discussed on the record and the Judge made suggestions about getting the house prepared for occupancy. 

Walter, through his lawyer, offered suggestions, set up a meeting with contractors, and laid out a schedule, but she would not give up the authority to run the project and she never returned Walter to his home. It became apparent that she either did not have the experience to accomplish the project, or did not wish to accomplish the task. 

For three years Walter was required to live at the assisted living facility, during which time he was deprived of the opportunity to live in, or even consistently visit, the home that he built for himself and his family. He was deprived of the opportunity to make decisions about his life, including how to spend and ultimately dispose of his substantial assets, to live the remaining days of his life the way he choose, all of this in the face of two certified doctors reports stating that he did not require a plenary guardian. 


We have an example here of — justice delayed is justice denied.

During the time the daughter and guardian stalled the proceedings, the early stage Alzheimerís disease advanced. By the time the appeals court concluded that he was entitled to the requested evidentiary hearing, it was too late. We did get a hearing for Walter in front of a different judge. What was accomplished was that Walter set the precedent that a Judge could not again avoid a hearing requested by a person in his position.


We were his third lawyer. We took the case in the interest of justice with a risk that we might not be paid. We did eventually receive fees awarded by the court that finally heard the case.

If he had come to us in the first place Walter might have had those three or four years of self determination. At least his restrictive guardian was replaced throught our efforts and he was allowed to visit and spend some time in his home.

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In the Matter of the GUARDIANSHIP of Walter J. MACAK.

Superior Court of New Jersey, Appellate Division. Argued March 15, 2005. Decided April 27, 2005.

Background: Ward filed complaint seeking to re-open and set aside guardianship, restore him to legal capacity, and appoint a conservator for him. Guardian filed motion for summary judgment. The Superior Court, Chancery Division, Probate Part, Hunterdon County, granted motion. Ward appealed.

Holdings: The Superior Court, Appellate Division, held that: 

(1) initial guardianship proceeding, in which a settlementíí was entered into by ward's attorney on ward's behalf, was fraught with error, mandating remand on issue of ward's capacity; 

(2) settlement failed to comply with procedures in place that were necessary to ensure ward's protection with respect to gifts that guardian was authorized to make to ward's daughter;

(3) order permitting guardian to serve without bond failed to protect wardís financial interests; and 

(4) ward was entitled to evidentiary hearing on his application to re-open and set aside guardianship. 

Reversed and remanded.

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