In a guardianship proceeding under Article 81 of the New York State Mental Hygiene Law (“MHL”), where a court evaluator as well as counsel for the Alleged Incapacitated Person (“AIP”) have been appointed, legal counsel for the AIP must adhere strictly to the AIP’s expressed wishes.
According 
to Rule 1.14 of the New York Rules of Professional Conduct: (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.(b) 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 New York Surrogate’s Court guardian ad litem, conservator or guardian.
The role of independent legal counsel to the AIP is to represent the interests of the AIP where (i) the AIP has requested counsel, (ii) the AIP wishes to contest the petition or petitioner does not consent to the authority requested in the petition, or (iii) the court determines that there is a potential conflict between the court evaluator’s role and the advocacy needs of the AIP.
A finding of incapacity in a MHL Article 81 proceeding requires a determination by the court that the AIP is unable to provide for personal needs and/or property management; and the person cannot adequately understand and appreciate the nature and consequences of such inability. MHL § 81.02(b). To assist the court in making this determination, a court evaluator must be appointed at the commencement of the proceeding. MHL § 81.09(a). The court evaluator’s duties are extensive and include interviewing the AIP, explaining the nature of the proceeding to the AIP, determining whether the AIP understands the consequences of the proceeding, researching the AIP’s alleged incapacity and preparing a report to the court setting forth the evaluator’s observations as to the AIP’s condition, affairs and situation. MHL § 81.09(c).
If an AIP is not represented by counsel of the AIP’s own choosing, the court may appoint legal counsel when, among other circumstances, the AIP wishes to contest the Article 81 petition or the court determines that appointment of counsel would be helpful in the resolution of the matter. MHL § 81.09(a). Unlike the court evaluator, who acts as a neutral investigator to assist the court in determining incapacity, the attorney for the AIP – which is the inquirer’s role here – acts as the AIP’s advocate. In so acting, the attorney must “as far as reasonably possible” maintain a “conventional relationship” with the AIP. Inherent in any conventional attorney-client relationship, in our view, is the requirement that the attorney “abide by [the] client’s decisions concerning the objectives of representation.”
If an AIP opposes appointment of a guardian, the attorney for an AIP in an Article 81 proceeding must oppose the appointment of a guardian, even if the attorney personally believes that the AIP lacks capacity to manage her own affairs. Failing to oppose the appointment of a guardian when the AIP insists otherwise would amount to seeking a guardian over the client’s objection, which “is appropriate only in the limited circumstances where a client’s diminished capacity is such that the lawyer reasonably believes that no other practical method of protecting the client’s interests is readily available.” Moreover, in this instance, the pendency of the Article 81 proceeding itself serves as a “method of protecting the client’s interests,” obviating the need for the attorney to take other protective action.
The role of NY legal counsel under MHL § 81.10 is to represent the person alleged to be incapacitated and ensure that the point of view of the person alleged to be incapacitated is presented to the court. Thus, to the extent an AIP has communicated a position against the appointment of a guardian, the AIP’s counsel must make decisions and pursue a litigation strategy that honors the AIP’s position.
If you are facing the difficult decision of pursuing guardianship for a loved one in Buffalo, New York, the experienced attorneys at Friedman & Ranzenhofer PC are here to help. Our compassionate and dedicated team understands the emotional and legal complexities of guardianship proceedings and is committed to protecting the rights and well-being of your loved one. We provide comprehensive legal support, from initial consultation to ongoing oversight, ensuring that every step of the process is handled with care and professionalism.
Contact Elder Law Attorney Robert Friedman today at 716-333-5144 to schedule a consultation and learn how we can assist you in securing the best possible outcome for your family. Let us guide you through this challenging time with the experience and compassion you deserve.
