Durable Powers and Client’s Incapacity

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By Lazar Emanuel
[Originally published in NYPRR November 2001]


In Ethics Opinion 746, issued July 18, 2001, the New York State Bar Association considered the issues facing a lawyer who holds a client’s “durable” power of attorney and learns that his client is becoming or has become mentally incapacitated. A client may execute a durable power of attorney designating her attorney as attorney-in-fact to supervise her affairs. The power “provides a detailed form for the granting of a number of specific and general powers which vest the grantee with a virtually alter-ego status for the grantor.”

If the power is granted to an attorney, several questions arise. One of these is: may the lawyer who is acting as the client’s attorney-in-fact petition the court for the appointment of a guardian under Article 81 of the Mental Hygiene Law? A legal guardian under this statute looks after the personal needs and manages the property of the incapacitated individual. The individual’s attorney-in-fact is one of the persons who are authorized to petition the court for the appointment of a guardian. The court is authorized to award legal fees to the petitioner ‘s attorney.

The Opinion answered this first question as follows:

… the lawyer who serves as the client’s attorney-in-fact may petition for the appointment of a guardian without the client’s consent, only if the lawyer determines that the client is incapacitated and that there is no practical alternative, through the use of the power of attorney or otherwise, to protect the client’s best interests.

But the Opinion did not encourage indiscriminate or hasty guardianship petitions. Quoting a number of sources, including the Model Rules and the Restatement (Third) of The Law Governing Lawyers, the Opinion stated, “When a client’s capacity to make decisions is impaired, seeking to withdraw is generally seen as the least satisfactory response because doing so leaves the client without assistance when it is most needed.”

Even where the client is incapable of making necessary decisions…it will often be preferable not to seek the appointment of a guardian because doing so would be “embarrassing for the client” or “too expensive, traumatic or otherwise undesirable or impractical in the circumstances.”

The Opinion concluded that a lawyer with a durable power should seek the appointment of a guardian without his client’s informed consent only if he believes the client is incapacitated, the lawyer cannot adequately protect the client’s interests by using the powers given him, and “there is no other practical alterative that is less restrictive.”

Lawyer/Appointee as Petitioner

Opinion 746 resolves two other questions: (1) should the lawyer with the durable power act as the petitioner for the appointment of the guardian; and (2) should the lawyer represent himself as petitioner in the guardianship proceeding?

The Opinion concludes that the lawyer is probably not the best person to bring the petition, unless the client can and does consent. “The lawyer should act as petitioner only if there is no one else available to act.” The lawyer should seek to find a family member or friend to bring the petition.

If the lawyer decides to act as petitioner, then the Opinion defines three separate circumstances which govern whether the lawyer may represent himself as petitioner.

1. If the lawyer/petitioner is currently representing the client and the client opposes the appointment of a guardian, the lawyer may not represent himself as Article 81 petitioner. The conflict between the lawyer’s representation both of himself as petitioner and of the client adverse to the petition would be impermissible under DR 5-105(A). The client would expect the lawyer to assist him in opposing the petition. Under these circumstances, the lawyer/petitioner should retain independent counsel.

2. Seek independent counsel if there will be a contested hearing on the issue of incompetence and it’s clear that the lawyer will be called as a witness on that issue.

3. If the client does not object to the appointment of a guardian and the lawyer will not be called as witness, then there is no “categorical ethical restriction” against the lawyer’s representing himself in the guardianship proceeding. The court’s participation in such decisions as the reasonableness of attorney fees to be awarded and its appointment of a “court evaluator” who will advise the court on various issues, guard against self-interested conduct by the lawyer.

But the lawyer must consider whether his own self-interest may reasonably affect his exercise of professional judgment in the Article 81 proceeding. If so, he faces an impermissible conflict under DR 5-105(A).

Finally, it’s advisable for the lawyer and client to discuss and resolve all these matters when the durable power is drafted. They should make provision for the client’s incapacity, including the possible eventual need to bring an Article 81 proceeding and to determine who will serve as counsel in the proceeding.

Lazar Emanuel is the Publisher of NYPRR.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

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