Appellate Division, Second Department · October 28, 2026 · 2026 NY Slip Op 06306
A ward in an SCPA article 17-A proceeding may choose her own counsel
Matter of Jessica L.M. (Deborah M.)
Read the official decision: 2026 NY Slip Op 06306
Holding A ward subject to a guardianship proceeding under SCPA article 17-A is constitutionally entitled to select counsel of their own choosing. The Surrogate’s Court erred in disqualifying the petitioner’s retained counsel and appointing new counsel because the record demonstrated the petitioner freely and independently retained her attorney.
Why it matters
Issue of first impression for the Appellate Division regarding the right to counsel in SCPA article 17-A proceedings
Establishes that wards in developmental disability guardianship proceedings have the right to select their own legal representation
The court’s words
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.
2026 NY Slip Op 06306, at the official text
We answer this question in the affirmative.
2026 NY Slip Op 06306, at the official text
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
2026 NY Slip Op 06306, at the official text
the petitioner freely and independently retained counsel of her own choosing
2026 NY Slip Op 06306, at the official text
no overriding competing public interest exists to abrogate the petitioner's right to select counsel of her choice
2026 NY Slip Op 06306, at the official text
| Court | Appellate Division, Second Department |
|---|---|
| Decided | October 28, 2026 |
| Citation | 2026 NY Slip Op 06306 |
| Area of law | Trusts, Estates and Guardianship |
| Week | Week ending October 31, 2026 |
| Official text | Official decision: 2026 NY Slip Op 06306 |
| Publication status | Slip opinions are uncorrected and subject to revision before publication in the Official Reports. |
| Source feed | New York slip opinion page |
| Law Watch record id | 1585 |
Same court and area in the last 180 days
- Matter of Winter2026 NY Slip Op 06310
The court reversed the Surrogate’s Court’s order disqualifying the surviving spouse from receiving letters of administration, finding that the sister failed to meet her burden of proving abandonment. The court held that the evidence presented, consisting of unsigned and unsworn documents, was insufficient to establish disqualification under EPTL 5-1.2.
- Matter of Elmezzi2026 NY Slip Op 05788
The Appellate Division affirmed the dismissal of the petitioners’ claim for a constructive trust, finding that they failed to establish the elements of promise, reliance, and unjust enrichment by clear and convincing evidence. The court deferred to the Surrogate’s Court’s credibility determinations made during the nonjury trial.
- Matter of Covington2026 NY Slip Op 05785
The Surrogate’s Court erred in dismissing the petition without a hearing because the verified allegations indicated the testator’s intent was not clear and unambiguous. The matter was remitted to allow the petitioner the opportunity to submit proof to establish the decedent’s intent.
- Matter of Gil R. (Dan R.)2026 NY Slip Op 05541
The Supreme Court properly exercised its discretion in awarding attorney’s fees and evaluator costs to the petitioner’s counsel and the court-appointed evaluator, as it provided an adequate explanation referencing the required factors. The appellate court affirmed the order denying the decedent’s motion to vacate the fee award.
- Schwartz v Goldstein2026 NY Slip Op 05203
The court affirmed the dismissal of the plaintiffs’ claims for conversion and breach of fiduciary duty, finding that the defendant, as successor trustee, rightfully possessed the sale proceeds and the plaintiffs lacked a superior ownership interest. Additionally, the court denied the plaintiffs’ cross-motion to amend the complaint to add their mother as a plaintiff because the proposed amendment was patently devoid of merit.
Recommended citation
ESQ HQ, New York Law Watch, Matter of Jessica L.M. (Deborah M.), 2026 NY Slip Op 06306 (Appellate Division, Second Department, October 28, 2026), https://esqhq.com/decisions/2026-ny-slip-op-06306/
How this record was made
Holding drafted by Law Watch’s in-house model, graded by three reviewers; every quotation verified word for word against the official text.
Read how Law Watch worksFeatured by Eric McAvey, November 14, 2026.