(a) Representation by Guardian. Except as otherwise provided by law or R. 4:26-3 (virtual representation), 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.
(b) Appointment of Guardian Ad Litem.
(1) Appointment of Parent in Negligence Actions. In negligence actions, unless the court otherwise directs, a parent of a minor or mentally incapacitated person shall be deemed to be appointed guardian ad litem of the child without court order upon the filing of a pleading or certificate signed by an attorney stating the parental relationship, the child's status and, if a minor, the age, the parent's consent to act as guardian ad litem and the absence of a conflict of interest between parent and child.
(2) Appointment on Petition. The court may appoint a guardian ad litem for a minor or an alleged mentally incapacitated person, upon the verified petition of a friend on his or her behalf. In an action in which the fiduciary seeks to have the account settled or has a personal interest in the matter, the petition shall state whether or not the guardian ad litem therein nominated was proposed by the fiduciary or the fiduciary's attorney. Each petition shall be accompanied by the sworn consent of the proposed guardian ad litem, stating his or her relationship to the minor or alleged mentally incapacitated person and certifying that he or she has no interest in the litigation, or if such interest exists, setting forth the nature thereof, and that he or she will with undivided fidelity perform the duties of guardian ad litem, if appointed. The court shall appoint the guardian ad litem so proposed unless it finds good cause for not doing so, in which case it shall afford the petitioner opportunity to file a new petition seeking the appointment of another person within 10 days of the rejection. If such new petition is not filed within such time, or if filed, is not granted, the court, when designating some other person as guardian ad litem, shall state for the record its reasons for rejecting petitioner's nominee. A conflict of interest between the petitioner and the minor or alleged mentally incapacitated person shall be good cause for rejection of the petitioner's nominee. Only one guardian ad litem shall be appointed for all minors or alleged mentally incapacitated persons unless a conflict of interest exists.
(3) Appointment on Party's Motion. 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 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. Notice of the motion shall be served at least 10 days before the return date fixed therein upon the appropriate persons designated in R. 4:4-4(a)(1)(2)(3) or (c) either personally, at the time of service of process or thereafter, or by registered or certified mail, return receipt requested. The court on ex parte motion may, in lieu thereof, fix such notice of the motion, given to suchpersons in such manner as it deems appropriate.
(4) Appointment on Court's Motion. The court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person on its own motion.
(c) Allowance of Fees. A guardian ad litem appointed pursuant to this rule or R. 4:26-3(c) (failure of virtual representation) who intends to apply for an allowance of a fee shall serve upon all parties and file with the court at least 7 days before the hearing a written notice of the amount applied for stating that the report and affidavit of services (unless no such affidavit is required under R. 4:87-7) have been filed and that copies thereof will be furnished on request.
(d) Filing Foreclosure Reports. Notwithstanding the appointment of a guardian ad litem in a foreclosure action to represent the interests of a minor or incapacitated person by a judge, if the written report of the guardian ad litem raises no objection or dispute as to the right to foreclosure, the report shall be filed with the Superior Court Clerk in Trenton. Reports which raise an objection or dispute shall be filed with the judge who appointed the guardian ad litem.
Note: Source-R.R. 4:30-2(a)(b)(c), 7:12-6; paragraph (b) amended July 16, 1981 to be effective September 14, 1981; paragraphs (a), (b) and (c) amended July 14, 1992 to be effective September 1, 1992; paragraph (b)(3) amended July 13, 1994 to be effective September 1, 1994; caption amended, and paragraphs (a), (b)(1), (b)(2), (b)(3), and (b)(4) amended July 12, 2002 to be effective September 3, 2002; new paragraph (d) added July 9, 2008 to be effective September 1, 2008.
