Right to counsel

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Legislation, Guardianship/Conservatorship of Adults - Ward

Article 81 of the Mental Hygiene Laws provides for counsel in a procedure to determine whether someone is incapacitated and provides a guardian for those determined to be incapacitated. N.Y. Mental Hyg. Law §§ 81.10, 81.11(e) (requiring appointment of counsel where requested, where a petition is contested, where the court thinks it would be helpful, where "the court is not satisfied that the person is capable of making an informed decision regarding the appointment of counsel", or some other scenarios specified in the statute); In re Turner, 730 N.Y.S.2d 188, 190 (App. Div. 2001) ("[I]ndigent defendants in the Criminal and Family Courts, and poor [allegedly incapacitated persons] and [incapacitated persons] in Article 81 proceedings have the right to appointment of effective counsel.").


Turner also suggested that counsel is provided when the guardianship is being modified. See also In Re Diurno, 182 Misc. 2d 205 (NY.Sup.Ct. 1999) (procedural safeguards for guardianship on review are "essentially the same").

 

Note that N.Y. Mental Hyg. Law §§ 81.10 and 81.11(e) do not apply to guardianships conducted under Article 17-A of the Surrogate's Court Procedure Act (which applies only to persons with a diagnosis of a developmental or intellectual disability).

Appointment of Counsel: categorical Qualified: yes