ATTORNEY ISSUE WITH ATTEMPT TO TERMINATE GUARDIANSHIP

IMHO, if the application is being contested - the only real change is that the state picks up the legal fees but, with 18-B rates, it will be less than the private rate.

MATTER OF JESSICA LM, 2023 NY Slip Op 23264 - NY: Surrogate's Court, Suffolk 2023:

"Before the court is an application by Jessica L.M. ("Jessica"), who was previously found by this court to be a person with a developmental disability, to terminate her SCPA 17-A guardianship, and revoke the letters of guardianship of the person issued to Paul M. and Deborah M., Jessica's parents.

The record reflects that by decision dated April 2, 2001, and decree dated April 10, 2001, Paul M. and Deborah M., Jessica's parents, were appointed the co-guardians of the person and property of Jessica. The letters of co-guardianship of the property were revoked by order of the court dated June 27, 2007. The petition currently before the court indicates that Paul M. passed away on February 1, 2022. No appeal was ever taken with respect to any of the foregoing orders.

Jurisdiction has been obtained over all persons listed in the petition as necessary parties. Deborah M., the current SCPA 17-A guardian filed opposition to the relief requested.

By her petition, Jessica seeks to terminate her guardianship on the grounds that the guardianship is not necessary, is not in her best interests, and is not the least restrictive means of providing Jessica with the support she may require (US Const Amends V & XIV; NY Const, art I, § 6). Jessica also asserts that she is not a person with a developmental disability within the meaning of SCPA 17-A, that the current guardianship was based on insufficient evidence and violated her due process rights, and that the guardianship is not in her best interests.

In support of their original guardianship petition, the co-guardians submitted affirmations from two examining physicians which indicated that Jessica had been diagnosed with the following: Asperger's syndrome, attention deficit/hyperactivity disorder, bipolar disorder, learning disorder, anxiety disorder, and mild cerebral palsy. The co-guardians also submitted Neuropsychological Evaluations which indicated that Jessica's overall abilities fell within the very superior range, with a Wechsler Intelligence Full Scale IQ of 133 in 1991 and within the average range in 2000, with a Wechsler Intelligence Full Scale IQ of 106.

The court has previously decided several similar uncontested petitions, and in those cases, a guardian ad litem was appointed to verify the allegations set forth in the petition. However, in this case, objections have been filed and issue has joined, leaving the court faced with the question of whether or not to appoint a guardian ad litem, particularly since petitioner is represented by counsel. In addition, the court had further concerns in this matter as to whether or not petitioner's counsel, who is based in Rochester, New York, had been freely retained. Thus, with the consent of all counsel, a hearing on the narrow issue of petitioner's representation was held before the court. Since the petitioner urged that any determination with respect to her should be based upon the provisions and protections of Mental Hygiene Law Article 81, it was agreed that the provisions of MHL §81.10 would be utilized at such hearing. After the hearing the court allowed the parties to submit briefs.

Petitioner's attorney submitted a brief reiterating her argument that Jessica has never been lawfully determined to have a lack of capacity such that she is unable to choose her own counsel, that Jessica demonstrated through her testimony a clear ability to understand the nature and consequences of her decisions as well as her process in retaining counsel, and that Jessica freely and independently chose her counsel.

Mental Hygiene Law (MHL) 81.10(a) provides, in relevant part, that in addition to the court having the ability to appoint counsel, the subject of a MHL Article 81 proceeding has the right to choose and engage legal counsel of the person's choice. However, the court must determine that retained counsel has been chosen freely and independently by the alleged incapacitated person (Id.).

The ability to have counsel of one's own choosing, however, is not absolute. The Court of Appeals of New York has held that

". . . although an individual possesses no absolute right to representation by an attorney of his choice (Greene v Greene, 47 NY2d 447, 452; People v Hall, 46 NY2d 873, cert den 444 U.S. 848; United States v Hobson, 672 F2d 825, and cases cited in footnote, at p 829, cert den 459 U.S. 906; United States v Cunningham, 672 F2d 1064, 1071; United States v Armedo-Sarmiento, 524 F2d 591, 592; United States v Sexton, 473 F2d 512, 514), any restriction imposed on that right will be carefully scrutinized. (United States v Hobson, supra; People v Doe, 98 Misc 2d 805.) An individual's right to select an attorney who he believes is most capable of providing competent representation implicates both the First Amendment guarantees of freedom of association (N.A.A.C.P. v Button, 371 U.S. 415; NY Const, art I, '9) and the Sixth Amendment right to counsel (cf. Faretta v California, 422 U.S. 806; NY Const, art I, '6) and will not yield unless confronted with some overriding competing public interest (Matter of Kelly, 23 NY2d 368, 378, n 3; People v Doe, supra; Matter of Gopman, 531 F2d 262, 268)" (In re Abrams, 62 NY2d 183, 196).

Therefore, while mindful of the restrictions placed on the court by the holding in Abrams, the court is nevertheless bound, given the nature of a guardianship proceeding, to make some inquiry, when the facts so indicate, to determine whether retained counsel is "chosen freely and independently by the alleged incapacitated person" (Matter of Caryl S.S. (Valerie L.S.), 45 Misc 3d 1223(A), 1223A). This is particularly necessary in a proceeding such as the one at bar, where findings have already been made with respect to petitioner's capacity and co-guardians have been appointed.

As previously noted, the question before the court appears to be one of first impression in the context of a SCPA 17-A Guardianship proceeding. As such, no case law could be located to guide the court. Moreover, there is precious little case law decided under MHL §81.10(a) with respect to this issue. Finally, there appears to be no guidance on the issue provided in the Law Revision Commentaries.

It appears that the facts herein are most analogous to those in Matter of Caryl S.S. (Valarie L.S.), supra. In that proceeding, the court found it "troubling" that the attorney purportedly selected by the AIP (alleged incapacitated person), had no prior relationship with the AIP, was brought into the case by the AIP's son, who is alleged to have exerted undue and improper influence over the AIP. The court then disqualified that attorney from further representation and appointed independent counsel for the AIP.

In the within proceeding, Jessica testified that she previously had disputes with her mother, who is the appointed guardian herein, over who would provide care and assistance (or, as Jessica put it, her "staff"). She also testified that it was her staff who advised her that she could terminate her guardianship, found the entity who currently employs her counsel herein, and served as liaison between counsel and her. She never discussed counsel's experience with such matters. Moreover, she similarly testified that she did not independently seek to interview any other attorneys or law firms to provide her with services, nor had she ever utilized the services of an attorney before for any purpose.^[1]

This court, like the court in Matter of Caryl S.S. (Valarie L.S.), supra, is troubled by the facts elicited during the course of the testimony of the subject of the proceeding. The same entity that was one of the major points of dispute between Jessica and her guardian seem to have (1) suggested to her that she could remove her mother's involvement in her decision making by terminating her guardianship; (2) found her attorneys who would represent her in such an application; and (3) had the attorneys make first contact with Jessica, the client, instead of Jessica making the effort to contact them.

As in Matter of Caryl S.S. (Valarie L.S.), supra, while it may not be unusual for an attorney to be contacted or selected by a relative or, as here, an acquaintance, it is unusual when that entity is at risk of being discharged by the guardian and makes such efforts in what could be construed as an attempt to preserve a relationship that benefits it financially.

The court does not, and cannot on the limited inquiry conducted herein, find any wrongdoing on the part of either the agency providing services or counsel. However, the testimony provided by the subject of the proceeding does provide the basis for a determination that Jessica merely acquiesced in the selection of counsel made by her "staff." Although the petition herein alleges that Jessica is a college graduate who has lived on her own since 2008 and makes decisions for herself with minimal assistance from others, her testimony makes it clear that she played a minimal role in the decision-making process with respect to selecting an attorney. Further, it appears that the process was managed by her "staff," an entity that could conceivably benefit financially from the termination of the guardianship, given that the current guardian and Jessica seem to have disagreements as to who would provide care to Jessica.

For these reasons the Court finds and determines that counsel herein has not been chosen freely and independently by Jessica, and as a result Jessica's current counsel is disqualified from representing her in this proceeding. As the testimony confirmed that petitioner is receiving governmental services, and thus may not be financially able to engage private counsel, the court shall appoint independent counsel from the 18-B Assigned Counsel Plan by separate order."