Matter of Jessica L.M. (Deborah M.)

Matter of Jessica L.M. (Deborah M.)

2026 NY Slip Op 06306 October 28, 2026 Appellate Division, Second Department Duffy

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Jessica L. M. (Anonymous), appellant.

Deborah M. (Anonymous), respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 28, 2026

2023-08687, 2023-08688 (File No. 40/01)

Mark C. Dillon, J.P.

Colleen D. Duffy

Carl J. Landicino

Elena Goldberg Velazquez, JJ.

Disability Rights of New York, Brooklyn, NY (Erin G. McGuinness and Kimberly Weisbeck of counsel), for appellant. APPEALS by Jessica L. M., in a guardianship proceeding pursuant to Surrogate's Court Procedure Act article 17-A in which Jessica L. M. petitioned to dissolve the guardianship of her person, from two orders of the Surrogate's Court (Vincent J. Messina, Jr., S.), both dated August 4, 2023, and entered in Suffolk County. The first order, sua sponte, disqualified counsel for Jessica L. M. from representing her in this proceeding. The second order, sua sponte, appointed new counsel for Jessica L. M. pursuant to article 18-B of the County Law.

Duffy, J. [*1]

OPINION & ORDER 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.

I. Background of the Action Jessica L. M. (hereinafter the petitioner) filed a petition pursuant to SCPA article 17-A to dissolve the guardianship of her person that had been entered pursuant to a decree in April 2001. The guardian opposed the petition. Thereafter, the Surrogate's Court, sua sponte, conducted a hearing to determine whether the petitioner freely and independently retained counsel for purposes of this proceeding (see generally Mental Hygiene Law § 81.10[a]). After the hearing, the court determined that the petitioner had not freely and independently retained counsel. Thereafter, the court issued an order dated August 4, 2023, sua sponte, disqualifying the petitioner's counsel from representing her in this proceeding, and a second order of the same date, sua sponte, appointing new counsel for the petitioner pursuant to article 18-B of the County Law. The petitioner appeals from both orders.

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 NY2d 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 [*2]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

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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 [*3]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 NY 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 NY 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 NY 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 NY Slip Op 51393[U], *3). The resulting deprivation of fundamental liberty interests inherent in the appointment of an SCPA article 17-A guardian constitutes

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