                      RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-5525-13T2

S.T.,

      Plaintiff-Appellant/
      Cross-Respondent,

v.                                    APPROVED FOR PUBLICATION

1515 BROAD STREET, LLC,                     August 6, 2018
THE WALSH COMPANY, LLC,
                                          APPELLATE DIVISION
and COUNTY GLASS & METAL
INSTALLERS, INC.,

      Defendants-Respondents,

and

COUNTY GLASS & METAL INSTALLERS, INC.,

      Third-Party Plaintiff-Respondent,

v.

VIRGINIA GLASS PRODUCTS,

      Third-Party Defendant,

and

IDESCO CORP.,

     Third-Party Defendant-
     Respondent/Cross-Appellant.
_______________________________________

          Argued September 26, 2017 – Decided August 6, 2018

          Before Judges Carroll, Leone, and Mawla.
          On appeal from Superior Court of New Jersey,
          Law Division, Essex County, Docket No. L-
          1651-10.

          Stephen R. Bosin argued the cause           for
          appellant/cross-respondent (Stephen          R.
          Bosin, attorney; Robert A. Vort, on         the
          briefs).

          Gerard H. Hanson argued the cause for
          respondent/cross-appellant Idesco Corp. (Hill
          Wallack, LLP, attorneys; Gerard H. Hanson,
          of counsel and on the brief; James Harry
          Oliverio, on the briefs).

          Peter A. Gaudioso argued the cause for
          respondent County Glass & Metal Installers,
          Inc.    (McElroy,   Deutsch,    Mulvaney  &
          Carpenter,    LLP,   attorneys;   Peter  A.
          Gaudioso, of counsel and on the brief).

          Matthew S. Mahoney argued the cause for
          respondent 1515 Broad Street, LLC (Linda
          Baumann, of counsel; Matthew S. Mahoney, on
          the brief).

          Michael C. Urciuoli argued the cause        for
          respondent The Walsh Company, LLC.

     The opinion of the court was delivered by

LEONE, J.A.D.

     Plaintiff S.T. appeals from a July 1, 2014 order approving

a settlement in this litigation and directing the distribution

of   settlement   proceeds.    She   argues   the   settlement    was

improperly approved on her behalf by a guardian ad litem (GAL)

appointed under Rule 4:26-2.

     We hold that under Rule 4:26-2(a)(4), a trial court may

appoint a GAL if there is good cause to believe that a party



                                2                           A-5525-13T2
lacks      the    mental        capacity        needed       to        participate         in    the

litigation.           We        also    hold        that,     based         upon     the        GAL's

investigation or other information, the court may give the GAL

the power to make decision(s) needed in the case, including the

decision     to    try     or    settle    the       case,       if    it   finds     clear       and

convincing        evidence       that    the    party       is    mentally         incapable      of

making the decision(s).                 Because the trial court properly found

that plaintiff lacked the mental capacity to decide whether to

try or settle the case, we affirm.

                                                I.

      Plaintiff's complaint alleged as follows.                                On March 11,

2008, she was a business invitee on the premises at 1515 Broad

Street in Bloomfield.              When exiting the building, she was struck

on   the    head    by     a     falling       object       and       sustained     severe        and

traumatic injuries.              As a result, she suffered and continued to

suffer great pain and anguish, confinement, and incapacitation

for her usual course of conduct and employment.

      Plaintiff, represented by trial counsel, filed a complaint

alleging negligence by defendants 1515 Broad Street, LLC (1515

Broad), The Walsh Company, LLC (Walsh), and County Glass & Metal

Installers, Inc. (County Glass).                      County Glass filed a third-

party complaint against Virginia Glass Products Corp. (Virginia




                                                3                                          A-5525-13T2
Glass)       and   Idesco     Corp.       (Idesco).         Plaintiff       amended     her

complaint to add Virginia Glass and Idesco as defendants.

       A Law Division judge denied Idesco's motion for summary

judgment, and its motion for reconsideration.                           We denied its

motion for leave to appeal.

       The    judge    dismissed         plaintiff's       claims   against     Virginia

Glass.       The remaining defendants filed a joint offer of judgment

for $475,000.         They gave plaintiff until ten days before trial

to accept, or they would seek costs and fees under Rule 4:58-3.

       As    the   trial    date       approached,     plaintiff's      trial    counsel

filed a motion and certification seeking the appointment of a

GAL    for    plaintiff.          On   September     27,    2013,     the    trial    court

entered an order appointing Frederick D. Miceli, Esq. as GAL,

and staying the trial pending the GAL's review of the matter.

       On March 17, 2014, the GAL issued his report.                         In light of

the findings in the GAL's report, the trial court's April 22,

2014    order      ruled    the    GAL    should   remain,      and    "empowered      and

entrusted [the GAL] with any and all decisions regarding the

ultimate       disposition        of     this    case,      whether     by     trial     or

settlement."

       At a July 1, 2014 hearing, plaintiff's trial counsel, the

GAL, and defendants reported they had arrived at a $625,000

settlement.         The trial court approved the settlement as fair,




                                             4                                   A-5525-13T2
reasonable,      and    in       plaintiff's      best   interests.        Plaintiff

appeals, represented by new counsel.                   Idesco filed a contingent

cross-appeal      of     the        denial        of     summary      judgment       and

reconsideration.

                                         II.

    The first issue is what rule governs the appointment of a

GAL under these circumstances.                   Plaintiff's counsel moved for

appointment of a GAL, invoking Rule 4:26-2(b)(3).                      However, Rule

4:26-2(b)(3) applies after a default or in a summary action:

            On motion by a party to the action, the
            court may appoint a guardian ad litem for a
            minor or alleged mentally incapacitated
            person if no petition has been filed [under
            Rule 4:26-2(b)(2)] and either default has
            been entered by the clerk or, in a summary
            action brought pursuant to R. 4:67 or in a
            probate action, 10 days have elapsed after
            service of the order.

Neither circumstance was present here.

    Nonetheless,         plaintiff's         counsel        could   properly      bring

concerns    to    the    trial       court's      attention.         The   Rules      of

Professional Conduct (RPC) permitted plaintiff's counsel to seek

appointment of a GAL.            See M.R., 135 N.J. at 175, 178.            RPC 1.14

addresses     "[w]hen        a    client's       capacity     to    make   adequately

considered decisions in connection with the representation is

diminished, whether because of minority, mental impairment or

for some other reason."            RPC 1.14(a).        It provides:




                                             5                                 A-5525-13T2
            When the lawyer reasonably believes that the
            client has diminished capacity, is at risk
            of substantial physical, financial or other
            harm unless action is taken and cannot
            adequately act in the client's own interest,
            the lawyer may take reasonably necessary
            protective action, including consulting with
            individuals   or  entities   that  have   the
            ability to take action to protect the client
            and, in appropriate cases, seeking the
            appointment   of   a   guardian   ad   litem,
            conservator, or guardian.

            [RPC 1.14(b) (emphasis added).]

Because    RPC     1.14     uses    the       phrase      "diminished      capacity,"

plaintiff is incorrect in arguing that phrase may not be used in

this context.

    The trial court granted the motion without specifying the

subsection it relied upon.              The court later ordered the GAL to

remain    pursuant    to    Rule    4:26-2(b)(4),         which    provides      that   a

"court may appoint a guardian ad litem for a minor or alleged

mentally incapacitated person on its own motion."                         Because the

court    ultimately    ruled       on   its    own     motion     under   Rule    4:26-

2(b)(4),    we   examine     the    propriety        of   its   action    under    that

subsection.

    However, plaintiff contends that the trial court had to

follow the procedures in Rule 4:86 before it could hold she

lacked    the    capacity    to    handle     her    own    affairs.       Thus,    she

essentially challenges whether the GAL was properly appointed.




                                          6                                   A-5525-13T2
       Plaintiff misapprehends the differences between appointment

of a guardian of the person or property, versus appointment of a

GAL.       Those differing appointments are governed by different

rules, which themselves recognize the distinction.                              See R. 4:26-

2(a) (permitting the appointment of a GAL if no "guardian of

either the person or the property" has not been appointed); R.

4:86-4(d) (allowing the appointment of a GAL to assist in the

litigation      for    appointment          of     a        guardian      for     person         or

property).

       The appointment of a guardian over the person or property

of an incapacitated person is governed by Rule 4:86 (formerly

Rule   4:83)    and    N.J.S.A.      3B:12-24          to    -35.      Appointment          of    a

general guardian under that rule gives the general guardian the

authority      to    "exercise       all    the        rights       and    powers      of    the

incapacitated        person"   over        their   person,          property,        or     both.

N.J.S.A. 3B:12-24.1(a).           It also gives the general guardian "all

of   the    powers    conferred       upon       the    guardian          by   law    and     the

provisions of this chapter."                     N.J.S.A. 3B:12-48.                  Those may

include:      title     in     the     person's             property;          control      over

expenditures for the person; custody of the person; power over

the person's property, place of abode, care, and medical care;

and the ability to seek the person's admission to a psychiatric

facility.      E.g., N.J.S.A. 3B:12-38, -43, -56(d), -57(f), -59.




                                             7                                         A-5525-13T2
The authority of the guardian lasts until the person's death

unless the guardian is removed or the person is restored to

competency.    N.J.S.A. 3B:12-64.

    Because the appointment of such a general guardian has the

effect   "to   restrain      an    allegedly     incompetent      person      of   his

liberty or deprive him of the control of his property and the

management of his personal affairs, '[s]uch an adjudication must

be sought in a constitutional manner in a proceeding instituted

for that purpose.'"          In re S.W., 158 N.J. Super. 22, 26 (App.

Div. 1978) (citation omitted).

           This cannot be done without the institution
           of an action in accordance with R. 4:83 for
           the determination of his or her mental
           incompetency   and  the   appointment    of   a
           general   guardian  for   that   person,    the
           submission of medical proof that the alleged
           incompetent is unfit and unable to govern
           himself or herself and to manage his or her
           affairs, and an adjudication by the court of
           such incompetency after a hearing.

           [Ibid.]

    Thus, Rule 4:86 requires the filing of a complaint alleging

incapacity,    supported      by    affidavits      or    certifications      by   two

physicians,    or    one   physician     and     a       psychologist,      giving    a

"diagnosis and prognosis," opining on the extent to which the

person "is unfit and unable to govern himself or herself and to

manage   his    or     her        affairs,"    and        "setting    forth        with

particularity    the   circumstances          and    conduct     of   the    alleged



                                         8                                   A-5525-13T2
incapacitated person upon which this opinion is based."                                 R.

4:86-2(a), (b)(2), (b)(2)(D), (F).                   The court must "determine

the issue of incapacity," and if it reaches a "judgment of legal

incapacity,"      shall     appoint      a       guardian    over    the    person      or

property who must report to the court periodically and "take

such   steps    as    are   necessary        to   protect    the    interest     of    the

incapacitated        person"   until     the      person's    death    or     return    to

capacity.      R. 4:86-5(a), (d), (e), (f).                  The court "must make

findings by clear and convincing evidence as to whether the

person is incapacitated."          In re Guardianship of Macak, 377 N.J.

Super. 167, 176 (App. Div. 2005) (citing In re M.R., 135 N.J.

155, 169 (1994)).1

       The   procedures      in   Rule       4:86   are     not    required    for     the

appointment of a GAL because it has far fewer consequences and

can result in the grant of authority only over the litigation in

which the GAL is appointed.              "An adjudication of incompetency"

does not result from and "is not necessary" for the appointment

of a GAL.      S.W., 158 N.J. Super. at 26.


1
  Because of the breadth of the powers of a general guardian,
courts must also consider "the extent to which the alleged
incapacitated person retains sufficient capacity to retain the
right   to   manage  specific   areas,   such  as   residential,
educational, medical, legal, vocational or financial decisions."
R. 4:86-2(b)(2)(G).   If so, the court may grant the guardian
more limited powers.     See, e.g., N.J.S.A. 3B:12-24.1(b); R.
4:86-1(a).



                                             9                                  A-5525-13T2
           The use of the qualifier "alleged" to the
           use of the term "mentally incapacitated
           person" in [Rule 4:26-2](b)(2), (b)(3) and
           (b)(4)   is    to   make   clear    that  in
           contradistinction to the appointment of a
           guardian, which requires an adjudication of
           mental incapacitation, a guardian ad litem's
           appointment is dependent only upon the
           allegation of mental incapacitation.

           [Pressler & Verniero, Current N.J.                Court
           Rules, cmt. 3 on R. 4:26-2 (2018).]

      Moreover, a GAL does not have the same general power over

person or property.      "[Rule] 4:26-2 governs the appointment of a

guardian to represent the interest of an infant or incompetent

person in the context of a particular litigation, while [Rule]

4:83-1 et seq. governs the appointment of general or special

guardians, not necessarily in a litigation context."                     In re

Clark, 212 N.J. Super. 408, 412 (Ch. Div. 1986), aff'd o.b., 216

N.J. Super. 497, 499 (App. Div. 1987).                "[T]he function of a

guardian ad litem is only to protect the interests of the ward

in respect of the litigation, while taking substantive actions

on behalf of the ward is the proper function of his guardian of

person or property."      Julius v. Julius, 320 N.J. Super. 297, 309

(App. Div. 1999) (citing Pressler, Current N.J. Court Rules,

cmt. on R. 4:26-2 (1999)).         "The function of" a GAL is merely

"to   insure   the   protection   of   the   rights    and   interests   of   a

litigant who is apparently incompetent to prosecute or defend

the lawsuit."    S.W., 158 N.J. Super. at 25-26.



                                       10                            A-5525-13T2
      Accordingly,        the       procedures            for    appointing        a    general

guardian over person or property do not apply to the appointment

of a GAL to assist in a particular litigation.                                  Because Rule

4:26-2 is intended to provide a GAL to assist in an already-

existing lawsuit, and no finding of general mental incapacity

results, no separate complaint need be filed seeking such a

finding.     Moreover, Rule 4:26-2(b) does not require particular

medical proofs.       Further, as the powers of a GAL are limited to

the   litigation,     there         is   no       need    to    consider    if    the     person

retains    capacity       in    the      other         areas     listed    in     Rule     4:86-

2(b)(2)(G).         Thus,       those         requirements         of      Rule    4:86       are

inapplicable,       and        we    must         instead       consider        whether       the

procedures    for     appointing              a     GAL    under     Rule        4:26-2      were

satisfied.

                                              III.

      The next issue is the appropriate standard to apply under

Rule 4:26-2(b)(4).         Generally, Rule 4:26-2(a) 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 in
           accordance with paragraph (b) of this rule.




                                                  11                                    A-5525-13T2
     Thus, in the absence of a contravening standard in Rule

4:26-2(b), the trial court may appoint a GAL for an allegedly

mentally incapable adult for "good cause."     Ibid.; see Zukerman

by Zukerman v. Piper Pools, Inc., 232 N.J. Super. 74, 88-89 &

n.12 (App. Div. 1989); see also N.J.S.A. 9:2-4 ("The court, for

good cause and upon its own motion, may appoint a guardian ad

litem or an attorney or both to represent the minor child's

interests.").2

     What constitutes good cause for appointing a GAL for an

allegedly mentally incapable adult under Rule 4:26-2(b)(4) has

not been recently considered.        More than seventy years ago,

before the rule was promulgated, the Chancery Court stated that

"[i]t is sufficient if the proof makes it evident that the party

from any cause, whether by age, disease, affliction, or extreme

intemperance, has become incapable and unfit for the government

of himself and his property."   Borough of E. Paterson v. Karkus,

136 N.J. Eq. 286, 288-89 (Ch. 1945).        However, that was the

standard for the declaration of lunacy and the appointment of a

general guardian.   See id. at 289 (citing lunacy cases, e.g., In

2
  Rule 4:26-2(b)(2), addressing the appointment of a GAL "upon
the verified petition of a friend on his or her behalf,"
provides that "[t]he court shall appoint the guardian ad litem
so proposed unless it finds good cause for not doing so." As no
such burden-shifting language appears in Rule 4:26-2(b)(4), the
court must find good cause for appointing a GAL under that
provision. Cf. Clark, 212 N.J. Super. at 412.



                                12                        A-5525-13T2
re Alleged Lunacy of Lindsley, 43 N.J. Eq. 9, 10 (Ch. 1887),

aff'd, 44 N.J. Eq. 564, 568 (E. & A. 1888)).

    The      Chancery     Court      extended     that    standard       to    the

appointment of a GAL.        Ibid. (citing Webb v. Webb, 96 N.J. Eq. 1

(Ch. 1924)).       We quoted that standard in S.W., 158 N.J. Super.

at 26, and said "[t]he procedure is set forth in [Rule] 4:26-2,"

but did not consider whether the old standard was compatible

with the new rule.       Now considering that issue, we conclude that

standard for appointing a general guardian is too high for the

more limited role of a GAL in a particular litigation.                    It puts

the cart before the horse to require it to be proven that a

person     lacks    mental   capacity       before   appointing     a    GAL    to

investigate whether a person lacks mental capacity.

    We find guidance in our Supreme Court's more recent cases

discussing the role of a GAL.          "[T]he basic role of the guardian

ad litem is to assist the court in its determination of the

incompetent's or minor's best interest."             J.B. v. W.B., 215 N.J.

305, 332 (2013) (quoting In re Adoption of A Child by E.T., 302

N.J. Super. 533, 539 (App. Div. 1997), and citing M.R., 135 N.J.

at 175).    In M.R., the Court noted that GALs assist in two ways.

    First,     "[t]he     GAL   acts   as    an   independent   fact      finder,

investigator       and   evaluator     as   to    what   furthers       the    best

interests of the child.         The GAL submits a written report to the




                                       13                                A-5525-13T2
court    and   is    available        to      testify."       Id.     at   173    (citing

Pressler, Current N.J. Court Rules, official cmt. to R. 5:8A &

R. 5:8B (1994)).          A GAL serves the same function for the alleged

mentally incapable person, including investigating the person's

mental capacity.           Id. at 175.             The commentary to Rule 4:26-2

also notes that "[t]he 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."                        Pressler & Verniero,

Current N.J. Court Rules, cmt. 3 on R. 4:26-2 (2018).

       Second,    if,     after    receiving         the    GAL's    report      or   other

information,        the    trial      court        agrees    the     alleged     mentally

incapacitated person is not capable of making the decision(s)

needed in the litigation, the court may grant the GAL the power

to make the decision(s).              The Court in M.R. noted that, unlike

the attorney for the person, "'[t]he 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.'"                   Id. at 174 (citation omitted).

Thus, "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."                             Id.




                                              14                                  A-5525-13T2
at 175; see Village Apartments of Cherry Hill v. Novack, 383

N.J. Super. 574, 579 (App. Div. 2006).

      In deciding the appropriate standards to govern these two

very different ways in which a GAL assists the court, we must

bear in mind the differing rights at issue.                 Our Supreme Court

in M.R. emphasized that "[t]he clear public policy of this State

. . . is to respect the right of self-determination of all

people, including the developmentally disabled."                 135 N.J. at

166   (quoting   N.J.   Const.   art.    I,   para.   1).      Similarly,   our

Legislature has provided that "[e]very person who has reached

the age of majority . . .          and has the mental capacity may

prosecute or defend any action in any court[.]"               N.J.S.A. 2A:15-

1.

      The "courts have a special responsibility to protect the

right of self-determination."           M.R., 135 N.J. at 166 (citation

omitted).     "Traditionally,     however,     courts   have    tempered    the

right of self-determination of incompetent people with concerns

for their best interests."         Id. at 167; see Novack, 383 N.J.

Super. at 578 ("Our courts zealously protect the personal and

property rights of incompetent parties.").                  "The paradox with

incompetent people is to preserve as much as possible their

right   of   self-determination     while      discharging      the   judicial




                                    15                                A-5525-13T2
responsibility to protect their best interests."                                 M.R., 135 N.J.

at 167.

      Appointing a GAL to investigate a person's mental capacity

does not deprive the person of the right of self-determination.

In order to provide the court with any information necessary to

protect the person's best interests, the burden to trigger such

an investigation should not be onerous.                            Such an appointment may

delay proceedings while the GAL performs the investigation, but

the   appointment          does   not     empower          the     GAL    to    take   over      the

person's        decision-making          in    the         litigation.            By   contrast,

empowering       a   GAL    to    make    decision(s)             for    the    person      in   the

litigation       does      deprive       the       person        of    the     right   of    self-

determination.          Therefore, it should be governed by the "heavy

burden     on     anyone     seeking          to        overcome       the     right   of    self-

determination."         Id. at 168.

      The final lesson we draw from our Supreme Court's decision

in M.R. is that the court must specifically determine which if

any decisions the person lacks the mental capacity to make, and

empower the GAL to make only those decisions.                                   M.R. addressed

whether, during a guardianship proceeding under Rule 4:86 for an

adult who it was agreed was "'incapable of governing herself and

managing    her      affairs,'"      a    GAL           should    be     appointed     regarding

whether she "had the specific capacity to express a preference




                                                   16                                    A-5525-13T2
to reside with her father."           Id. at 159-60, 173-77.             The Court

emphasized     that    "the   mere   fact   that   a    person      is    generally

incompetent does not mean that person is incompetent for all

purposes.      A person who is generally incompetent can still make

choices about specific matters."            Id. at 169.            Thus, in M.R.,

the Court ruled 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.         The

Court   held    that   "specific     incapacity"       to   make    a    particular

decision must be shown "by clear and convincing evidence."                       Id.

at 169.

    Based on the guidance provided by our Supreme                         Court in

M.R., the ruling on whether to appoint a GAL to investigate a

person's mental capacity to make the decision(s) needed in the

litigation, and the ruling on whether to empower a GAL to make

the decision(s) for the person, should be governed by different

standards.

    A trial court's ruling on its own motion to appoint a GAL

to investigate whether a person is mentally incapacitated under

Rule 4:26-2(b)(4) is governed by the "good cause" standard in

Rule 4:26-2(a).        If there is good cause to believe that the

person lacks sufficient mental capacity to make the decision(s)

needed to conduct the litigation, the court may appoint a GAL to




                                       17                                  A-5525-13T2
serve as an independent investigator, fact finder, and evaluator

to   report   back   to    the    trial    court   whether      the    person    has

sufficient    mental      capacity.        No   higher   standard       should    be

imposed    because     such      an    investigation     aids    the    court     in

determining if its intervention is needed to protect the rights

of   the   alleged   mentally         incapacitated    person,    but    does    not

itself deprive the person of the right of self-determination.

Thus, we disagree with our 1978 decision in S.W., and disapprove

the Chancery Court's pre-1946 decisions in Karkus and Webb, to

the extent they suggest that the standard for lunacy must be met

before a GAL may be appointed to investigate whether a person

lacks mental capacity.

      By contrast, a trial court's ruling whether to empower the

GAL to make the decision(s) needed in the litigation for an

allegedly mentally incapacitated person must be governed by a

higher standard because the ruling deprives the person of the

right of self-determination.             Unlike the standard for appointing

a general guardian - that the person "has become incapable and

unfit for the government of himself and his property," S.W., 158

N.J. Super. at 26 (quoting Karkus, 136 N.J. Eq. at 288-89); see

Webb, 96 N.J. Eq. at 5 - the standard for empowering a GAL

should reflect the person's mental capacity to make the specific

decision(s) needed in the litigation.                 Accordingly, the court




                                          18                              A-5525-13T2
must determine that the person is mentally incapable of making

the decision(s) needed in the litigation before the court can

entrust the GAL to make the decision(s).                           To ensure that the

person's     right          of      self-determination          is      not        improperly

overridden,       the       court    must    make     that     ruling     by       clear     and

convincing evidence.                See M.R., 135 N.J. at 168-69, 171; see

also In re Jobes, 108 N.J. 394, 407 (1987).

     In deciding whether to appoint a GAL or to empower the GAL

to   make     specified            decision(s)       needed     in      the        particular

litigation which the alleged mentally incapacitated person is

not mentally capable of making, the trial court need not and

should     not        determine      whether       the    person     is   incapable            of

governing    his       or    her    person    or    property    generally.              Such    a

determination          would     call   for    the       appointment      of       a    general

guardian, and should be made in a proceeding under Rule 4:86.

Moreover,        in     determining         whether      the    person        is       mentally

incapable of making the particular decision(s) needed in the

litigation, the court should not empower the GAL to make other

decisions in the litigation which the person is mentally capable

of making.       See In re Conroy, 98 N.J. 321, 381 (1985).

                                             IV.

     The trial court here issued two separate orders, the first

appointing the GAL to investigate, and the second empowering the




                                              19                                       A-5525-13T2
GAL to make the decision whether to try or settle the case.                          In

considering    those    rulings,      we    must     hew   to   our   standards       of

review.3

      "The decision to appoint a guardian ad litem is reposed in

the discretion of the trial judge, and rightly so because the

decision is informed by the experience the judge gains as the

judge sifts through a daily docket of contested matters."                        J.B.,

215 N.J. at 333 (citing M.R., 135 N.J. at 179).                   The decision to

empower the GAL to make the decision(s) for the party similarly

is reviewed for an abuse of discretion.                    Those decisions will

not   be   reversed    absent    an   abuse     of    discretion.       See     In    re

Adoption of a Child by J.D.S., 353 N.J. Super. 378, 402 (App.

Div. 2002).

      As noted above, by a ruling that empowers the GAL to make

the decision(s), it must be established by clear and convincing

evidence that the person is mentally incapable of making the

decision(s)    needed    in     the   litigation.          We   must   review        any

factual findings made by the trial court under the traditional

standard used to review factual determinations made by our trial

3
  County Glass argues a plain-error standard of review applies
because plaintiff failed to object to the motion to appoint the
GAL. However, we will not apply that standard because there is
no evidence plaintiff's counsel copied her on the motion.    In
future cases, if counsel for an alleged mentally incapacitated
person makes a motion to appoint a GAL, the motion should be
served on that person.



                                           20                                 A-5525-13T2
courts.    Factual "[f]indings by the trial judge are considered

binding on appeal when supported by adequate, substantial and

credible evidence."        Rova Farms Resort, Inc. v. Inv'rs Ins. Co.,

65 N.J. 474, 484 (1974).          Appellate courts "'do not disturb the

factual findings and legal conclusions of the trial judge unless

we are convinced that they are so manifestly unsupported by or

inconsistent    with       the    competent,      relevant     and    reasonably

credible   evidence    as    to   offend    the    interests    of    justice.'"

Ibid. (citation omitted).4          We must hew to those standards of

review.

                                       A.

    In     support    of    the   motion    for    appointment       of   a   GAL,

plaintiff's counsel certified:

           We reasonably believe that [plaintiff] has
           exhibited a diminished capacity and is at
           risk    of    substantial     financial    and
           psychological/physical    harm.       We   are
           seriously   concerned   about    [plaintiff's]
           physical    and    emotional     ability    to
           participate in the prosecution of her case
           and her ability to attend a lengthy trial.
           We are also concerned that her capacity to
           make    adequately    considered     decisions

4
  We note that we review for abuse of discretion other procedural
decisions which must be supported by clear and convincing
evidence. See, e.g., State v. S.N., 231 N.J. 497, 515-16 (2018)
(reviewing for "abuse of discretion" the decision whether to
detain a defendant pretrial, which must be supported "by clear
and convincing evidence that a defendant's danger, risk of
flight, and risk of obstruction overcomes the presumption of
release").



                                       21                                 A-5525-13T2
              regarding her case is diminished.   Also our
              ability to communicate with our client . . .
              and fully explain issues relating to her
              case is hindered because of her diminished
              capacity.

    Counsel's      certification       made          clear    that     "[w]e        are   not

suggesting that [plaintiff] is incompetent or that she need a

full time guardian appointed to manage her affairs."                                However,

"because of her diminished capacity to understand the issues

relating      to   her     case,"     plaintiff's             counsel        sought       the

appointment of a GAL to protect plaintiff's interests in the

litigation.

    Counsel's      certification       attached          three       reports      from    Dr.

Peter    M.    Crain,    plaintiff's        psychiatrist             who     performed       a

neuropsychiatric        evaluation.         Dr.       Crain     found       the     accident

caused     "cognitive      decline,        complicated          by     the        onset    of

depression."       That resulted in her having impaired focus and

difficulties with comprehending, retention, and keeping up with

verbal     information,     as      well        as    being      "severely          impaired

emotionally and physically."

    Counsel's      certification       also          attached    the       report    of   Dr.

Paula P. Reid, plaintiff's treating psychologist who performed a

neuropsychological evaluation.              Dr. Reid found "[a] significant

reduction in the predicted intellectual performance on verbal

comprehension and processing speed," with "cognitive impairment"




                                           22                                       A-5525-13T2
affecting her ability to pay attention and understand complex

material,   and   significant        depression       which    could     affect    her

ability to think clearly.           Additionally, counsel's certification

attached    a   more   recent       neuropsychological         report     confirming

plaintiff's attentional deficits and difficulty in integrating

complex materials.

      Plaintiff's counsel certified that defendants had retained

numerous    experts     who       refuted      plaintiff's     theory      that    the

accident    caused     injury,      and     who    concluded     any    difficulties

plaintiff was experiencing were not related to the accident.

Plaintiff's     counsel   certified         that    counsel    had     explained   the

$475,000 offer of judgment, but that "[w]e have grave doubts

that [plaintiff] is able to fully grasp and understand the offer

itself and/or the potential financial consequences of refusing

the Offer of Judgment."5

      Plaintiff's counsel subsequently provided a new report from

Dr.   Crain.      After       a    two-hour        psychiatric       examination    of

plaintiff on September 13, 2013, Dr. Crain concluded plaintiff

had "a diminished capacity to fully consider the risks of her

decision making in regard with how to proceed with the case."

5
  Under the offer of judgment rules, if plaintiff obtained a
money judgment of "80% of the offer or less," plaintiff would
have to pay defendants the costs of suit, "all reasonable
litigation expenses incurred following non-acceptance," and
prejudgment interest. R. 4:58-2, -3.



                                          23                                 A-5525-13T2
       Counsel's      certification        and    supporting       psychiatric        and

psychological reports provided good cause for the trial court's

September     27,     2013   order    to    appoint      a   GAL    to    investigate

plaintiff's mental capacity and report to the court.

                                           B.

       The    GAL's    subsequent      investigation         provided      clear      and

convincing     evidence      that    plaintiff     was   mentally        incapable     of

deciding whether to try or settle the case.                        The GAL reviewed

extensive case materials, including the reports of the treating

physicians and experts on both sides, and the depositions of

plaintiff, fact witnesses, and others.                   The GAL conducted two

interviews with plaintiff in the presence of her trial counsel.

The GAL researched the applicable law.                   On March 17, 2014, the

GAL issued his report, which stated as follows.

       Plaintiff contended she sustained a traumatic brain injury,

and had elevated cerebrospinal fluid, intracranial hypertension,

and major depressive disorder.                   She made over 500 visits to

health care providers, was still receiving speech and cognitive

therapy, was taking several prescription medications daily, and

was    awarded      permanent   disability         benefits     from      the    Social

Security Administration.            The GAL cited the psychiatric reports

from    Dr.    Crain    that    plaintiff        had   diminished        capacity      to

consider the risks of litigation, and the psychological reports




                                           24                                   A-5525-13T2
from Dr. Reid and others who had found a significant reduction

in plaintiff's intellectual performance.

       The GAL noted Dr. Reid had engaged counsel and refused to

testify on plaintiff's behalf.              In her interviews with the GAL,

plaintiff could not accept that Dr. Reid would not testify.                     She

could not understand the types of proofs her case required from

medical       experts.      After    the    second    interview,    it   remained

unclear that plaintiff understood what was being explained by

the GAL and her trial counsel.

       The GAL found plaintiff still refused to accept the doctors

who would be testifying, despite an explanation of the discovery

rules, the deadlines involved, and the court's orders barring

plaintiff from submitting additional experts.                The GAL concluded

plaintiff did not "have sufficient mental capacity" either to

have   "the     requisite    understanding      and     ability"   to    make   "an

informed and a rational decision regarding her case," or to

overcome       her   "intransigent         unwillingness    to     confront     the

realities of her case."             The GAL recommended that he should be

entrusted with the decision whether to try or settle the case.

       Subsequently, plaintiff had a phone conversation with the

GAL asking that he speak to Dr. Reid in another attempt to get

her to testify, which proved futile.                 On June 17, 2014, the GAL

issued    a    supplemental    report      stating     plaintiff   continued     to




                                           25                             A-5525-13T2
exhibit     an    inability         to   accept      who   would         provide      expert

testimony for her, or understand the factors necessary to weigh

the   risks      and     make   a    decision.         The    GAL        reiterated      his

conclusion that due to plaintiff's diminished capacity, she "was

incapable of making an informed, rational and prudent decision

regarding her case."

      A party "may be incompetent because [s]he lacks the ability

to understand the information conveyed, to evaluate the options,

or to communicate a decision."                    See Conroy, 98 N.J. at 382.

Here, the GAL's investigation, findings, and recommendations,

coupled with the materials submitted to the trial court by the

GAL   and     plaintiff's       counsel,       provided      clear       and   convincing

evidence that plaintiff was not mentally capable of making an

informed decision on whether to try or settle the case.                                Thus,

the   trial      court    did   not      err   in    its   April     22,       2014    order

empowering the GAL to make that decision.

      Plaintiff        notes    that     "[m]erely     because       a    settlement      is

rejected by a [GAL] is not in and of itself a sufficient basis

to warrant removal" of the GAL.                     Zukerman, 232 N.J. Super. at

90.    Likewise, merely because a settlement is rejected by a

party is not a sufficient basis to warrant appointing a GAL or

empowering the GAL to decide whether to settle.                          It is similarly

inadequate to show "a mere difference of opinion [between the




                                           26                                      A-5525-13T2
party's counsel and the party] . . . as to whether or not a

proposed settlement offer was sufficient, or should be accepted

because    of    the   inherent     risks     of   a    trial    on   liability      or

damages, or both."           See id. at 95-96, 98.              However, the court

properly found that plaintiff lacked the mental capacity to make

that decision.

                                         V.

    Nonetheless, plaintiff contests the power of the GAL to

agree to settle the case.           Plaintiff argues that there can be no

settlement       she   did    not     agree   to       because    "[a]    settlement

agreement between parties to a lawsuit is a contract," Nolan v.

Lee Ho, 120 N.J. 465, 472 (1990), which requires "a 'meeting of

the minds' between the parties," Morton v. 4 Orchard Land Tr.,

180 N.J. 118, 129 (2004) (citation omitted).                     She notes that an

attorney cannot force a client to accept a settlement.

    Those propositions hold true when the party is competent to

make the decision whether to settle.               However, because the trial

court    found    plaintiff     was    not    mentally     capable       of   deciding

whether to try or settle the case, and appointed the GAL to make

that decision, the GAL "must of necessity have the sole right to

accept or reject a settlement offer."                  Zukerman, 232 N.J. Super.

at 99.    Once appointed to make a decision, the GAL "steps into

the shoes of the minor" or mentally incapacitated person, Kubiak




                                         27                                   A-5525-13T2
v. Robert Wood Johnson Univ. Hosp., 332 N.J. Super. 230, 238

(App.    Div.    2000),   and    makes    the    decision    on   behalf   of   that

person, E.B. v. Div. of Med. Assistance & Health Servs., 431

N.J. Super. 183, 209 (App. Div. 2013).

    This        accords   with   the     law    in   other   jurisdictions.       "A

guardian ad litem is authorized to act on behalf of his ward and

may make all appropriate decisions in the course of specific

litigation.       For example, notwithstanding the incompetency of a

party, the guardian . . . may settle the claim on behalf of his

ward."    United States v. 30.64 Acres of Land, 795 F.2d 796, 805

(9th Cir. 1986); accord Thomas v. Humfield, 916 F.2d 1032, 1033

(5th Cir. 1990).          "[T]o protect the rights of the incompetent

person," the GAL may properly "compromise or settle the action."

43 C.J.S. Infants § 426.

    Moreover, plaintiff was protected "'against an improvident

compromise'" by Rule 4:44.               Hojnowski v. Vans Skate Park, 187

N.J. 323, 334 (2006) (citation omitted); see Colfer v. Royal

Globe Ins. Co., 214 N.J. Super. 374, 377 (App. Div. 1986).                      "[A]

guardian ad litem may not enter into a binding settlement of an

infant's claim without court approval."                  Wilkins v. Smith, 181

N.J. Super. 121, 126 (App. Div. 1981) (citing R. 4:44).                          The

same was true here.




                                          28                               A-5525-13T2
       Under Rule 4:44, in "[a]ll proceedings to enter a judgment

to    consummate   a   settlement      in     matters    involving       minors       and

mentally    incapacitated        persons,"        the     trial        "court      shall

determine whether the settlement is fair and reasonable as to

its amount and terms."            R. 4:44-3.        "This rule codifies the

requirement that all settlements in favor of minors and mentally

incapacitated        persons      be     reviewed         for      fairness           and

reasonableness" in a "'friendly' hearing" to review the proposed

"'friendly' judgment."          Pressler & Verniero, Current N.J. Court

Rules, cmt. 1 on R. 4:44 (2018).

       Plaintiff   contends     the    settlement       could    not    be   approved

under   Rule   4:44    because    the    rule     addresses       settlements         "on

behalf of a minor or mentally incapacitated person."                         However,

the trial court found that plaintiff was mentally incapable of

making the decision whether to settle the case.                         Accordingly,

she was a "mentally incapacitated person" for the purpose of

settlement,    and     Rule    4:44    applied.         Rule    4:44    contemplates

approval of settlements negotiated by a "guardian ad litem," and

provides for their fees.          R. 4:44-3.       Indeed, "[t]he purpose of

a [GAL] under R. 4:26-2 is clearly to protect the infant's or

the incompetent person's interests in the course of litigation

and   'friendly'     judgments."        Clark,    212     N.J.    Super.     at     413.




                                         29                                     A-5525-13T2
Thus, the trial court properly reviewed the proposed settlement

under Rule 4:44.

                                             VI.

         Finally, plaintiff appeals the July 1, 2014 order approving

the settlement.          "[T]he calculation of a fair amount of damages

is   a    matter     well    within    the     ken    of    trial     judges     and     is   a

function routinely performed by them" in Rule 4:44 hearings and

other proceedings.                Werner v. Latham, 332 N.J. Super. 76, 85

(App.     Div.      2000).        Therefore,       "the    question    or    whether      the

settlement proceeds are adequate" is left to the discretion of

the trial court.             Ibid.     We find no abuse of discretion here.

See Suarez v. Berg, 117 N.J. Super. 456, 464 (App. Div. 1971).

         The   trial    court      reviewed    the        experts'    reports      and    the

evidence       of   plaintiff's       injuries.           Plaintiff's      trial   counsel

noted the proposed $625,000 settlement was $150,000 higher than

defendants'         offer    of    judgment.         Moreover,       the   GAL   convinced

plaintiff's trial counsel to reduce its agreed-upon contingency

fee by $27,500, and the federal Department of Veterans Affairs

(VA) to reduce its lien by $27,500 and to cap its lien at the

level     of     plaintiff's        medical    expenses       at     the    time   of     the

settlement.

         The trial court also found that plaintiff would face extra

burdens if she went to trial.                  The eight MRIs before and after




                                              30                                   A-5525-13T2
the accident did not provide objective medical evidence of an

organic brain injury, let alone the brain injuries she claimed

from the accident.          Some of the doctors who treated her were

unwilling to testify on her behalf.                  The GAL added that there

was an issue of what type of object had struck plaintiff, that

there were major issues concerning the extent of her injuries

and   causation,     and   that     "the   downside       risk    of    this    case   is

tremendous."       The     court    also    heard    testimony         from    plaintiff

about why the court should reject the settlement.

      The    trial    court        found    that     the    settlement          was    in

plaintiff's    best      interest    and    that    the    amount       was    fair    and

reasonable.     Indeed, the court found it was "the best possible

settlement    that    [she]    could       get,"    and    "the    best       thing    for

[her]."      The court instructed County Glass and Walsh to pay

$550,000 and Idesco to pay $75,000.                  It ordered the deduction

of: $190,998.75 to plaintiff's counsel, representing $30,211.78

for actual costs and $160,786.97 for the reduced contingency

fee; $22,720.50 to the GAL for his services; and $156,958.10 for

the VA and workers' compensation liens.                   It ordered the balance

of $254,322.65 to be paid to plaintiff.

      We have reviewed the appendices supplied by all parties,

including the material in the sealed appendices submitted by




                                           31                                   A-5525-13T2
plaintiff.       We find ample evidence to support the trial court's

decision to approve the settlement.

    Moreover,          plaintiff's          testimony         confirmed           that   she    had

diminished      mental       capacity       and       was     not      mentally      capable     of

deciding whether to settle.                   When asked if she was satisfied

with trial counsel's services, she spoke at length about her

medical       treatment.            When    the        question         was       repeated,     she

initially      discussed          counsel    but       went       on   to    relate      her   life

history at great length.                Plaintiff admitted that when she went

to lectures "I can only process a third to a half of what is

said."    The court found that plaintiff did not understand the

risks she would run by going to trial, and that she was "not

understanding everything that's happening here."

    Plaintiff notes that the trial court stated she is "a very

intelligent" person who has "a very good grasp" of her medical

situation.            In    Julius,        the        defendant         similarly        was    "an

apparently      intelligent         party,       [but       he]     exhibited       patterns     of

behavior . . . which were reasonably interpreted by the trial

judge    as    either       deliberately          obstructive           or    the     result     of

psychological         stress       or   disease.        .     .    .        The    circumstances

clearly warranted appointment of someone who would enable the

litigation       to        move     forward           while       protecting         defendant's

interests."       320 N.J. Super. at 309.                           Similarly, plaintiff's




                                                 32                                       A-5525-13T2
intelligence in other areas did not make up for her lack of

mental capacity to decide whether to try or settle the case.

       Plaintiff     notes     that    the    settlement       will   result    in    the

payment of money directly to her, after the GAL's appointment

terminates.         However, it is not contended that plaintiff is

incapable of managing money once received.                        The trial court

simply found she was mentally incapable of deciding to try or

settle the case, and appointed and empowered the GAL to protect

her interests.

       Plaintiff notes that "courts should never work to coerce or

compel a litigant to make a settlement," and that "courts must

'avoid the appearance (as well as the reality) of coercion' of

settlements from 'unwilling litigants.'"                   Peskin v. Peskin, 271

N.J. Super. 261, 275-76 (App. Div. 1994) (citation omitted).

This case bears no resemblance to Peskin.

       In Peskin, in trying to get a defendant to decide whether

to settle, the trial court threatened him with contempt, refused

to    allow   him   to   ask      questions       or   explain,   gave    him    thirty

seconds to answer, warned he would not get another opportunity

to settle, and said it would consider a refusal to settle in any

fee    application.          Id.      at    266-69.       We    held     that    "[t]he

threatening     nature       of     these     remarks      imposed      impermissible

pressure on defendant to settle."                  Id. at 278.         "Courts should




                                             33                                 A-5525-13T2
not use the threat of sanctions to force the settlement of a

case."      Id. at 276.       Here, the trial court did not do anything

threatening or inappropriate.

       Moreover, in Peskin we did not consider the "defendant's

claim of lack of capacity to consent to the settlement."                          Id. at

279.     We       noted    that     "if    one     party   was    not     competent     to

voluntarily        consent    thereto,"          that   party     could    not    decide

whether to settle.            Id. at 276; accord Brundage v. Estate of

Carambio,     195    N.J.    575,    601    (2008).        In    that   situation,      "a

guardian     ad    litem     will    have    to    be   appointed."         Wolkoff     v.

Villane, 288 N.J. Super. 282, 292 (App. Div. 1996).                             That was

the situation here.

                                            VII.

       We need not consider Idesco's contingent cross-appeal of

the denial of summary judgment and reconsideration.                        Idesco asks

us to consider its cross-appeal only if this court vacates the

July   1,    2014    order     approving          the   settlement,       but    we   have

affirmed it.

       Affirmed.




                                             34                                  A-5525-13T2
