Counsel to the AIP in New York Article 81 Guardianship
As part of an Article 81 Guardianship proceeding, the alleged incapacitated person (“AIP”) is entitled to an attorney. Typically the Counsel to the AIP is appointed at the time the Order to Show Cause to appoint a Guardian is signed.
There are times, however, when the Court will initially just appoint a Court Evaluator. After conducting a preliminary investigation, the Court Evaluator may recommend that the alleged incapacitated person have counsel.
When Can Court Evaluator Recommend Counsel to the AIP?
Pursuant to Mental Hygiene Law 81.10, the Court should appoint Counsel in any of the following circumstances:
1. The Alleged Incapacitated Person requests counsel;
2. The Alleged Incapacitated Person wishes to contest the petition;
3. The Alleged Incapacitated Person does not consent to being moved from their current location to a nursing home or other residential facility;
4. The Alleged Incapacitated Person does not consent to necessary major medical or dental treatment;
5. The petition requests the appointment of a temporary guardian;
6. The Court determines that a possible conflict may exist between the Court Evaluator’s role and the needs of the Alleged Incapacitated Person;
7. If the court determines that appointment of counsel to the AIP would be helpful to the resolution of the matter.
What does Counsel to the AIP Do?
Counsel to the AIP should represent the interests of the Alleged Incapacitated Person. If the AIP has capacity, then Counsel to the AIP should ascertain as best as possible the wishes and preferences of the AIP. If the AIP is able to verbalize their wishes and desires, for example, to remain at home, and if home is safe, then Counsel to the AIP should advocate for the AIP to be able to remain home. If home is not safe, but the AIP wishes to return home, Counsel should identify if there is a feasible way to return the AIP home.
If the AIP has diminished capacity, then consistent with section 1.14 of the Model Rules of Professional Conduct, Counsel to the AIP may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client. (It is my personal opinion that if Counsel to the AIP believes that the appointment of a guardian is in the best interest of of the AIP, although Counsel has a duty to advocate for the AIP, counsel should also act in best interest of the the AIP and consider assisting in the appointment of a Guardian.)
If the AIP does not have any capacity, then Counsel to the AIP should attempt to take those steps which are calculated to be in the best interests of the AIP.
Retained Counsel Pursuant to MHL 81.10
Even if the Alleged Incapacitated Person has counsel appointed for them by the Court, they have the right to choose and retain their own counsel. Indeed, Mental Hygiene Law 81.10(a) specifically provides that:
“Any person for whom relief under this article is sought shall have the right to choose and engage legal counsel of the person’s choice.”
This means that although an attorney is appointed for the AIP, if the AIP has the ability to choose their own counsel, then the AIP should have the ability to do so.
Note that the ability to retain counsel pursuant to this section does not mean that the AIP has capacity. Indeed, pursuant to MHL 81.10: the standard for the AIP to retain their own counsel is whether or not counsel has been freely and independently chosen. The standard for a determination of incapacity, pursuant to MHL 81.02 is that a person is at risk of harm and is unable to meaningfully appreciate the nature and consequences of their actions.
There are times when counsel is freely and independently chosen but yet the AIP is still determined not to have capacity.
If the Court appoints Counsel to the alleged incapacitated person, and if the AIP then decides to retain counsel, there must be a hearing pursuant to MHL 81.10. In such event, any attorney appointed by the Court shall continue his or her duties until the Court has determined that retained counsel has been chosen freely and independently by the alleged incapacitated person.
The attorney seeking to serve as retained counsel should then bring a motion, by Order to Show Cause, to ask the Court to discharge the court appointed attorney and allow for retention of the retained counsel. The Court will likely hold a hearing, some of which will be in camera, to determine the circumstances surrounding retention of counsel. Of interest to the Court will be:
- How did the AIP contact retain Counsel?
- Did somebody contacted retained Counsel for the alleged incapacitated person?
- Is there a conflict of interest between retained counsel and any of the other parties to the proceeding?
- Is there a conflict of interest between retained counsel and the AIP?
The Court will want to make sure that no other person involved in the proceeding may have influenced the AIP to hire counsel or contact the counsel for the benefit of the AIP.
How does Counsel get Paid?
MHL 81.10(f) provides that the Court shall determine the reasonable compensation for any attorney appointed pursuant to this section. The person alleged to be incapacitated shall be liable for such compensation unless the Court is satisfied that the person does not have money.
If the petition is dismissed, the court may in its discretion direct that petitioner pay such compensation for the person alleged to be incapacitated.
Retained Counsel to the AIP should not take money from the AIP and should wait until their fee is awarded by the Court or until the proceeding is dismissed.
When the person alleged to be incapacitated dies before the determination is made in the proceeding, the court may award reasonable compensation to the attorney, payable by the petitioner or the estate of the decedent or by both in such proportions as the court may deem just.
Serving as Counsel to the AIP is an important role as you are the voice of the AIP.
For more information, please contact Estate Litigation, Guardianship, Probate and Estate Planning attorney Regina Kiperman:
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40 Wall Street
New York, NY 10005
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