IN RE: Jessica L. M. (Anonymous) (2026)

Argued—April 9, 2026

OPINION & ORDER

C/

DUFFY, J.

The question presented on these appeals, an issue of first impression for this Court, is whether a ward who is the subject of a guardianship pursuant to article 17–A of the Surrogate's Court Procedure Act (SCPA) is entitled to legal counsel of their own choosing.  We answer this question in the affirmative.

II. The Relevant Issue

The right of an individual to select counsel “implicates both the First Amendment guarantees of freedom of association and the Sixth Amendment right to counsel and will not yield unless confronted with some overriding competing public interest” (Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 196 [citations omitted] ).

SCPA 1750–a(1) provides, inter alia, that the Surrogate's Court may appoint a guardian of the person or property of a person who is “developmentally disabled,” if that is in the “best interest” of such person.  SCPA article 17–A does not expressly provide that a person who is subject to guardianship under SCPA article 17–A is entitled to the right to counsel of their choice, nor is there a provision in SCPA article 17–A which provides that the person who is subject to guardianship under SCPA article 17–A is entitled to the right to appointment of counsel.  These issues and their intersection in this proceeding appear to be matters of first impression for an appellate court in New York. Thus, we look to the legislative intent of the law, related authority, and relevant case law to determine the issues.

A. SCPA 1750–a(1)

SCPA 1750–a(1) provides, among other things, that, when a court determines a person is developmentally disabled, “the court is authorized to appoint a guardian of the person ․ if such appointment of a guardian or guardians is in the best interest of the person who is developmentally disabled.”  This statute also provides that

“a person who is developmentally disabled is a person who has been certified by one licensed physician and one licensed psychologist, or by two licensed physicians at least one of whom is familiar with or has professional knowledge in the care and treatment of persons with developmental disabilities, having qualifications to make such certification, as having an impaired ability to understand and appreciate the nature and consequences of decisions which result in such person being incapable of managing himself or herself and/or his or her affairs by reason of developmental disability and that such condition is permanent in nature or likely to continue indefinitely” (id.).

B. Mental Hygiene Law article 81

Mental Hygiene Law (MHL) article 81 sets forth provisions relating to proceedings for the appointment of a guardian for personal needs or property management.  Pursuant to MHL § 81.01, the purpose of Mental Hygiene Law article 81 is

“to promote the public welfare by establishing a guardianship system which is appropriate to satisfy either personal or property management needs of an incapacitated person in a manner tailored to the individual needs of that person, which takes in account the personal wishes, preferences and desires of the person, and which affords the person the greatest amount of independence and self-determination and participation in all the decisions affecting such person's life.”

MHL § 81.10(a) provides that the subject of an MHL article 81 guardianship petition has the right to counsel of their choice.  Any attorney appointed pursuant to that section “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” (id.).  “Within the context of article 81 of the Mental Hygiene Law, an alleged incapacitated person may retain private counsel, and the courts are tasked with making an inquiry as to whether retained counsel was chosen freely and independently” (Matter of Matthew A.G., 243 AD3d 566, 568 [2d Dept 2025] ).

III. Discussion

A. MHL article 81

As an initial matter, we note that the parties consented to apply the law governing MHL article 81 to this proceeding given the lack of any express statutory guidance under SCPA article 17–A regarding the selection and/or appointment of counsel.  Indeed, given the dearth of case law on this issue, we find that the Surrogate's Court properly determined that the law governing MHL article 81 on this issue is analogous law that can be looked to with respect to deciding the issues before the court.  Although we find that the court appropriately relied upon the law governing MHL article 81 in determining whether, under SCPA article 17–A, the petitioner was entitled to freely and independently retain counsel of her own choosing for the purposes of this proceeding, as set forth below, the record shows that, under the circumstances of this case, the court should have found that the petitioner freely and independently retained counsel of her choice.

Concomitant with the right of a person who is the subject of a guardianship proceeding pursuant to MHL article 81 to select counsel of their own choosing, is the requirement that the court before which the proceeding is pending is tasked with determining whether retained counsel was chosen freely and independently (see Matter of Matthew A.G., 243 AD3d at 568 [“the courts are tasked with making an inquiry as to whether retained counsel was chosen freely and independently”];  Matter of Nicole L. [Eleanor D.], 78 Misc.3d 389, 391 [Sup Ct, Nassau County 2023] [court held a hearing and determined that Eleanor D. independently retained counsel of her own choosing];  Matter of S.B. [E.K.], 66 Misc.3d 452, 461 [Sup Ct, Chemung County 2019] [“Pursuant to (MHL) § 81.10(a), the court must determine that counsel retained by the (alleged incapacitated person) was ‘chosen freely and independently by the alleged incapacitated person’ ”];  Matter of Caryl S.S. [Valerie L.S.], 45 Misc.3d 1223[A], 2014 N.Y. Slip Op 51697[U], *5 [Sup Ct, Bronx County 2014] [“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’ ”] ).  For example, in Matter of Matthew A.G. (243 AD3d 566), a proceeding pursuant to MHL article 81, the Supreme Court, after appointing Mental Hygiene Legal Services (hereinafter MHLS) to represent Matthew A.G., determined that he was an incapacitated person in need of a guardian.  Two years later, counsel, who purported to be privately retained by Matthew A.G., moved to vacate certain prior orders of the court in the proceeding.  The guardian and MHLS opposed.  MHLS specifically argued that the court should determine whether counsel who purportedly was retained had been freely and independently retained by Matthew A.G. In that proceeding, the court determined that counsel was not freely and independently retained (see Matter of Matthew A.G., 243 AD3d at 568).

B. SCPA article 17–A

Although there are no appellate cases determining whether a person who is subject to an SCPA article 17–A proceeding has the right to counsel in a proceeding of this nature, in an analogous case, in 2016, in Matter of Leon (53 Misc.3d 1204[A], 2016 N.Y. Slip Op 51393[U] [Sur Ct, Kings County] ), the Surrogate's Court held that an indigent proposed ward in a guardianship proceeding under SCPA article 17–A is constitutionally entitled to appointment of counsel.  The court noted that SCPA 407(1)(b) gives the Surrogate's Court the authority to appoint counsel in any case where the judge “determines that such assignment of counsel is mandated by the constitution of this state or of the United States,” and that the case before it fit that description (Matter of Leon, 53 Misc.3d 1204[A], 2016 N.Y. Slip Op 51393[U], *1).  There, the court also pointed to the myriad quasi-criminal and civil proceedings, ranging from military eviction and child custody, to involuntary commitment and employment litigation, wherein the right to assigned counsel is recognized (see id. at *3).  The court determined that, in SCPA article 17–A proceedings, where a person's decision-making authority in every aspect of life is at stake, such comparable constitutional protections are warranted (see Matter of Leon, 53 Misc.3d 1204[A], 2016 N.Y. Slip Op 51393[U], *3).  The resulting deprivation of fundamental liberty interests inherent in the appointment of an SCPA article 17–A guardian constitutes

“ ‘a loss of liberty as significant as those which previously have triggered the appointment of counsel.’  The fundamental liberty interests of an individual to self-determination, privacy, and autonomy are certainly equal to, if not greater than, the private interests implicated in proceedings involving the rights of parents in neglect proceedings or of tenants in housing court.  [SCPA] [a]rticle17–A guardianship infringes on a person's fundamental right to privacy, a fundamental right to refuse unwanted medical treatment, and a fundamental right to make personal decisions regarding marriage, procreation, contraception, family relationship, child rearing, and education” (Matter of Leon, 53 Misc.3d 1204[A], 2016 N.Y. Slip Op 51393[U], *3 [citations omitted], quoting Matter of St. Luke's–Roosevelt Hosp. Ctr. [Marie H.], 159 Misc.2d 932, 935–936 [Sup Ct, N.Y. County] ).

The court also held that appointment of a guardian ad litem would not satisfy the due process need for a “vigorous advocate on the respondent's behalf” (id. at *4).

For all of the same reasons articulated by the Surrogate's Court in Matter of Leon (53 Misc.3d 1204[A], 2016 N.Y. Slip Op 51393[U] ), in holding that an indigent ward in a guardianship proceeding under SCPA article 17–A is entitled to appointment of counsel, we determine that a ward in a guardianship proceeding under SCPA article 17–A also has the right to select counsel of their own choosing when retaining an attorney.

C. Public Policy

Public policy considerations also support the conclusion that those involved in guardianship proceedings under SCPA article 17–A are entitled to retain counsel of their own choosing.  Notably, in all cases, including, inter alia, criminal and civil matters, public policy favors a party's right to freely retain counsel of their own choice (see People v. Gomberg, 38 N.Y.2d 307, 312 [1975] [“an important concomitant of the right to counsel is the obligation of the courts to respect a selection of counsel made by the defendant and such choice should not be lightly interfered with”];  Hudson Val. Mar., Inc. v. Town of Cortlandt, 54 AD3d 999, 1000 [2d Dept 2008] [“A party's entitlement to be represented in ongoing litigation by counsel of its choice is a valued right”];  Zutler v. Drivershield Corp., 15 AD3d 397, 397 [2d Dept 2005] [“a party's entitlement to be represented in ongoing litigation by counsel of its choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted”];  Matter of Bacot v. Winston, 21 Misc.3d 1123[A], 2008 N.Y. Slip Op 52163[U] [Sup Ct, Bronx County 2008] [MHL article 81 proceeding] ).

IV. The Petitioner Freely and Independently Retained Counsel

Contrary to the determination of the Surrogate's Court, the record demonstrates that, under the circumstances present here, the petitioner freely and independently retained counsel of her own choosing.  At the hearing, the petitioner articulated her purpose in retaining counsel and demonstrated an understanding of the nature and consequences of having counsel.  The record shows, inter alia, that the petitioner had contacted more than one legal organization and spoke personally to the attorney whom she retained, and continued to communicate and work with that attorney.  During the court's inquiry, the petitioner was able to articulate a clear understanding of the purpose and goals of the proceeding and why counsel was sought to be retained.  Notably, unlike Matter of Matthew A.G. (243 AD3d 566), no party to the proceeding objected to the petitioner's selection of counsel (see id.).  Under these circumstances, the court should have qualified the petitioner's counsel as freely and independently retained, and refrained from appointing alternate counsel (see e.g. id.;  MHL § 81.10[a] ).

Unlike in Matter of Matthew A.G. (243 AD3d 566), where MHLS opposed the purported retention of counsel by the incapacitated person under a guardianship pursuant to MHL article 81, here, the guardian—the petitioner's mother—did not object to the attorney whom the petitioner had retained as her counsel.  In Matter of Matthew A.G. (243 AD3d at 568), MHLS contended, inter alia, that the Supreme Court should determine whether Matthew A.G. freely and independently retained counsel.  After a hearing, the court determined that Matthew A.G. was an incapacitated person under MHL article 81 who lacked the legal authority to retain private counsel and that, even if Matthew A.G. did have the ability to retain private counsel, he did not freely and independently make the decision to retain his purported counsel.  The court reached its conclusion based upon, among other things, Matthew A.G.'s lack of understanding of the application and his failure to recognize the purported retainer agreement.  On appeal, this Court held that the Supreme Court properly determined that Matthew A.G. did not freely and independently retain counsel of his choosing (see Matter of Matthew A.G., 243 AD3d at 568).

Here, since the record in this case reflects that the petitioner freely and independently retained counsel and no overriding competing public interest exists to abrogate the petitioner's right to select counsel of her choice, we reverse the orders and reinstate the petitioner's retained counsel.

V. Conclusion

Although we determine that the Surrogate's Court has the authority to appoint counsel to indigent individuals who are subject to guardianship proceedings under SCPA article 17–A, no such appointment in this case was necessary given the petitioner's voluntary retention of counsel of her own choosing.

In light of our determination, we do not reach the petitioner's remaining contentions.

Accordingly, on the Court's own motion, the notices of appeal are deemed to be applications for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ).  The first order dated August 4, 2023, is reversed, on the law and in the exercise of discretion, and the petitioner's original counsel is reinstated.  The second order dated August 4, 2023, is reversed, on the law and in the exercise of discretion, and the appointment of counsel for the petitioner pursuant to article 18–B of the County Law is vacated.

DILLON, J.P., LANDICINO and GOLDBERG VELAZQUEZ, JJ., concur.

ORDERED that on the Court's own motion, the notices of appeal are deemed to be applications for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] );  and it is further,

ORDERED that the first order dated August 4, 2023, is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the petitioner's original counsel is reinstated;  and it is further,

ORDERED that the second order dated August 4, 2023, is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the appointment of counsel for the petitioner pursuant to article 18–B of the County Law is vacated.

ENTER:

Darrell M. Joseph

Clerk of the Court