Aho, Matter of

Decision Date06 April 1976
Citation347 N.E.2d 647,39 N.Y.2d 241,383 N.Y.S.2d 285
Parties, 347 N.E.2d 647 In the Matter of Olga AHO, an alleged incompetent person, Appellant. Lillian C. Rhodes et al., Respondents.
CourtNew York Court of Appeals Court of Appeals

Richard C. Welden, New York City, for appellant.

Daniel G. Donovan and Gerald Nolan, White Plains, for respondents.

JONES, Judge.

We hold that the attorneys who represented this alleged incompetent in the proceedings which resulted in the adjudication of her incompetency had authority to prosecute the appeal from such adjudication and therein to seek review of the denial of the motion for change of venue.

This proceeding was initiated by two nieces of Olga Aho to have their 85-year-old aunt declared incompetent and a committee of her person and property appointed. The petition instituting the proceeding was brought on by order to show cause dated June 29, 1973 in which a guardian ad litem was appointed to protect the interests of the alleged incompetent. Venue was laid in Supreme Court, Westchester County. On July 16, 1973, the firm of attorneys who had been representing the alleged incompetent for the previous 15 months made a demand for change of venue to Schenectady County where Olga Aho was then sojourning with a cousin of her deceased husband. On July 19 the guardian ad litem made a preliminary report in which he reported that he had personally interviewed the alleged incompetent and had arranged for her examination by a psychiatrist selected by him who had concluded that Olga Aho was incompetent to manage her affairs. In conclusion he urged an early jury trial to determine the issue of incompetency.

On July 26 the attorneys representing the alleged incompetent made a formal motion under CPLR 511 (subd. (b)) for change of venue to Schenectady County. Among the affidavits submitted in opposition was that of the guardian ad litem, in which he described the circumstances from which he concluded that she was domiciled in Westchester County and again urged an early jury trial to determine the issue of competency. By order dated August 3, Supreme Court denied the motion for change of venue and set the matter down for trial on August 8.

The attorneys for the incompetent immediately appealed from the order of August 3 and by order to show cause containing a temporary stay sought a stay of trial. The stay was denied by the Appellate Division on August 16, and on August 23, before argument of the appeal, the proceeding was peremptorily set down for trial on September 6.

The jury was drawn on September 6 and the trial was held on September 7. It was the unanimous verdict of the jury that Olga Aho was incompetent to manage her affairs. By judgment entered September 18, she was formally adjudicated an incompetent and the court accordingly appointed committees of her person and of her property.

On October 16 the attorneys who had been representing Mrs. Aho served a notice of appeal to the Appellate Division from the Supreme Court judgment of September 18 expressly excluding therefrom any appeal from the adjudication of incompetency, but seeking by such appeal to bring up the intermediate order of August 3 denying the motion for change of venue. By order dated December 27, 1973 on their application the attorneys for the petitioners in the incompetency proceedings were authorized to represent the interests of the petitioners on the appeals to the Appellate Division.

On February 8, 1974 the attorneys for the petitioners moved to dismiss the appeals to the Appellate Division from the August 3 order denying the motion for change of venue and from the September 18 judgment, on the ground, Inter alia, that the attorneys who had been representing Olga Aho had no standing or authority to represent her following the adjudication of her incompetency. The Appellate Division denied this motion with leave to renew on argument of the appeals.

On October 18, 1974 following argument the Appellate Division dismissed the appeals. We now modify that disposition.

Addressing first the Appellate Division's conclusion that the authority of the incompetent's prior attorneys to represent her ceased on the adjudication of incompetency, our point of departure is Carter v. Beckwith, 128 N.Y. 312, 28 N.E. 582. In that case an adjudicated incompetent had requested an attorney to prosecute proceedings on behalf of the incompetent to supersede the commission of lunacy previously issued against him and to have the possession and control of his property restored to him. The proceedings failed, it having been determined that the lunacy still continued. The attorney then made application to the court for an allowance payable from the assets of the lunatic for the services rendered notwithstanding that the effort had been unsuccessful, but that proceeding abated on the death of the incompetent. Thereafter, the attorney renewed his claim against the incompetent's estate and was resisted by the administrators. In upholding a recovery by the plaintiff attorney, the court, although acknowledging that the incompetent could not enter into a binding contract of retainer, nevertheless said of the role of the attorney for the incompetent (p. 319, 28 N.E. p. 583): '(A)s this exercise of the jurisdiction of the court to deprive a person of his liberty and property on the ground of lunacy, however necessary, is nevertheless the exercise of a supreme power, and should be surrounded by all reasonable safeguards to prevent mistake or fraud, so, also, where upon a case presented after inquisition, there is reasonable ground to inquire whether the lunacy still continues, it is highly important for the protection of the rights of the party that he should be afforded all reasonable facilities for the prosecution of the inquiry; and it cannot, we think, be doubted that the court has the power, on an application, to supersede the commission, where it is convinced that there is probable cause, or even, in a doubtful case, to make the reasonable costs and expenses of the traverse a charge upon the lunatic's estate, and this although the traverse prove unsuccessful Unless this power exists, the direction of the statute that on the restoration of reason, and the capacity of the lunatic to conduct his affairs, his real and personal estate shall be restored to him, would, in some cases, afford but a barren protection."

What was said in the Carter case is equally true today, and we look with the same responsible concern on the right of an alleged incompetent to representation by personal counsel where it is sought in the first instance to invoke 'the jurisdiction of the court to deprive a person of his liberty and property on the ground of lunacy'. To be sure, in Carter, the precise issue was the personal attorney's right to compensati and not his right to appear. But the language of the court's opinion makes it clear that the latter was subsumed in the recognition of the former. Neither right was there predicated on the law of contracts. Rather the appearance of the personal attorney and his attendant entitlement to compensation sprang from the fundamental right of the incompetent person, in a matter of such gravity and consequence, to have access to 'all reasonable facilities' for the prosecution of the inquiry into the propriety of the continuation of the adjudication of lunacy.

Common sense dictates that if an adjudicated incompetent has the right to representation in an application which attempts to set aside an earlier determination of his incompetency, an alleged incompetent surely must be accorded a corresponding right on appeal in the original incompetency proceeding itself. (As to the right of an incompetent to representation by counsel until final adjudication on appeal generally, see Insanity Proceeding--Right to Counsel, Ann., 87 A.L.R.2d 950, 961--962.) To hold otherwise would be to cut short the alleged incompetent's right of review at the initial determination of incompetency and to limit him to but a single judicial consideration of an issue and related questions, the significance of which to him defies exaggeration.

Nor might it be assumed that the committee or a guardian ad litem for the incompetent, if one be appointed, would sedulously carry out the wishes of the incompetent person with respect to an appeal. * The committee, whose status derives from the adjudication of incompetency, has an apparent conflict of interest with the incompetent who wishes appellate review of the process which led to the committee's designation. Moreover, the committee's responsibility is only to function as agent of the court in the exercise of the latter's jurisdiction over the incompetent and his property. (Mental Hygiene Law, § 78.01; Matter of McGuinness, 290 N.Y. 117, 48 N.E.2d 286.)

So too, a guardian ad litem may of necessity be obliged to act contrary to the desires of the incompetent and to adopt a position adverse to that urged by his ward. In the discharge of his objective responsibility, the guardian may conclude that the best interests of the incompetent would not be served by prosecuting an appeal. It is incumbent on a guardian to make an objective evaluation of the circumstances and to take such action as will advance what he perceives to be the best interests of the ward; the wishes of the ward will be relevant but not determinative. In the present case the guardian determined to oppose the motion for change of venue; clearly he could not then be expected to take an appeal from the denial of that motion.

Thus, neither the committee nor a guardian ad litem may be regarded as an unbiased protagonist of the wishes of an incompetent seeking appellate review of some portion of the incompetency proceedings; only counsel directly responsive and accountable to the incompetent, whose duty is to carry out the subjective wishes of his client to the best of his ability by appropriate means, can fill this position. It was therefore error to have...

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