Category Archives: Adult Guardianship

“It’s Not You Per Se, It’s How You Got Involved in This Case”: The Allegedly Incapacitated Person’s Right to Retain Counsel of Choice, Even When Incapable of Making That Choice

In adult guardianship cases, there is an inherent tension between recognizing that an adult has diminished capacity to make decisions for herself, and recognizing that this same individual, who may be incapable of making sound decisions, remains free to retain an attorney of her own choice to represent her interests in connection with a petition to have a guardian appointed.

It is this tension that the Supreme Court, State of New York, County of Bronx explored in its November 25, 2014 decision in Matter of Caryl S.S., 91809/14, NYLJ 1202678313480, at *1 (Sup., BX, Decided November 25, 2014).  Caryl S.S. petitioned for the appointment of a guardian for her mother, Valerie L.S., an allegedly incapacitated person (the “AIP”), who was 92 years old and suffered from the effects of a recent stroke.  Caryl S.S. sought to be appointed as guardian for the AIP, and her petition was apparently opposed, at least indirectly, by the AIP’s son, Caryl S.S.’s brother, who wished to retain the authority granted to him as the AIP’s agent under a health care proxy and power of attorney.

At the start of every adult guardianship case, the Court appoints an attorney from lists maintained by the New York State Unified Court System of attorneys who have met certain educational, professional, and ethical standards, and are therefore eligible to represent allegedly incapacitated adults in guardianship cases.  However, any adult alleged to be incapacitated has an absolute right, under Section 81.10(a) of the Mental Hygiene Law, to retain a different attorney to represent her if she wishes.  It is the duty of the counsel for the AIP and Court Evaluator appointed by the Court to inquire as to whether the AIP wishes to proceed with Court-appointed counsel, or wishes to retain substitute counsel and, if the AIP wishes to retain substitute counsel of her choice, the Court must then determine whether “retained counsel has been chosen freely and independently.”

This is where the process really gets tricky.  “Freely” and “independently” are complicated inquiries under any circumstance, and much more so when the individual in question may be incapacitated.

In the Caryl S.S. case, the Court made a lengthy and thorough inquiry into the circumstances of the AIP’s retention of counsel, and determined that it was not the AIP herself, but the AIP’s son, who retained counsel.  In the guardianship context, it is not unusual for adult children of allegedly incapacitated adults to research and vet potential counsel, and even to meet with prospective counsel prior to retention and accompanying prospective counsel to meet with a home-bound parent.  While this situation is perhaps not what immediately comes to mind when we think of “free” and “independent” retention of counsel, it is not necessarily out of line for a concerned child to set a retention in motion for a parent who is either unable to do so or not interested in doing so.

What is problematic, however, is when an adult child, who is himself defending allegations of unduly influencing the AIP and transferring the AIP’s property to himself without authority to do so, unilaterally installs an attorney for the AIP, and takes steps to prevent the AIP from speaking with the Court Evaluator appointed by the Court, and even from appearing before the Court for the Court to make an in-person inquiry into the AIP’s capacity.  It is doubly problematic when, as here, the AIP does not know the name of the attorney representing her, and cannot articulate even a basic understanding of the legal issues causing her to have retained the attorney in the first place.

In such a situation, the Caryl S.S. Court opined, the AIP’s counsel was not the free and independent choice of the AIP, who lacked “any real comprehension or understanding of her own interests.”  Accordingly, while the Court did not ascribe any ill will or actual impropriety to the attorney retained by the AIP’s son, it nevertheless disqualified the attorney on the basis of apparent improprieties in the circumstances surrounding the retention:  “It’s not you as an attorney per se, it’s how you got involved in this case.”

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