If a lawyer holds a client's durable power of attorney and the client becomes incapacitated, can the lawyer petition to have a guardian appointed and act as the lawyer in that proceeding?
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This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer named as a client's attorney-in-fact under a durable power of attorney later concluded the client could no longer handle his or her own affairs, and asked whether the lawyer could petition for appointment of an Article 81 guardian and, if so, represent the lawyer's own self as petitioner. The committee framed the answer against the duties owed to a client of impaired capacity (EC 7-11, EC 7-12) and the principle, drawn from N.Y. City 1997-2, the Restatement section 24, and ABA Formal Op. 96-404, that a lawyer must as far as possible maintain a normal lawyer-client relationship and act in the client's best interests, treating clients with disabilities as presumptively capable of participating in decisions.
On whether to petition at all, the committee held that seeking a guardian is a drastic step that substitutes a stranger's judgment for the client's, can drain the estate, and is to be avoided where possible. A lawyer-agent may petition without the client's consent only if the lawyer determines the client is incapacitated, the lawyer cannot adequately protect the client's interests through the durable power of attorney or another less-restrictive alternative, and no other practical alternative exists. The opinion listed alternatives (using the power of attorney to hire caregivers or arrange nursing-home admission, public assistance, revocable trusts, family involvement, care management, and the like) and noted Article 81 favors the least intrusive intervention, with courts penalizing frivolous petitions. In such drastic circumstances the lawyer may reveal client confidences to the limited extent necessary to protect the client (DR 4-101; N.Y. City 1987-7). Even when a petition is warranted, the lawyer-agent should act as petitioner only if no family member, friend, or other concerned person is available.
On representing the lawyer's own self as petitioner, the committee drew lines by the conflict rules. If the lawyer currently represents the client and the client opposes the guardianship, the lawyer may not act as petitioner's counsel, because that would advocate against a current client (DR 5-105(A)). If a former client opposes the petition, DR 5-108(A) may bar the lawyer, who should retain separate counsel. If the client does not object but there will be a contested hearing on incapacity at which the lawyer would obviously be a witness, the lawyer-witness rule (DR 5-102(A)) bars serving as counsel, so separate counsel is needed. But if the client does not oppose the petition and the lawyer will not be a witness, the committee found no categorical bar: the dual role of attorney-in-fact and lawyer for oneself as attorney-in-fact is not a per se conflict, because the court oversees the reasonableness of fees (Mental Hygiene Law 81.16(f)) and appoints a court evaluator to consult the alleged incapacitated person, with the lawyer still required to weigh any DR 5-101 personal interest. The committee analogized to lawyers who serve as a fiduciary and represent themselves in that capacity (N.Y. State 610, N.Y. State 471), and recommended addressing the issue when the power of attorney is first drafted.
Currency note
This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Could the lawyer-agent petition for a guardian over the client's objection?
A: Only as a last resort. The opinion concluded the lawyer may petition without consent only if the client is incapacitated, the power of attorney or another less-restrictive option cannot protect the client, and no one else can serve as petitioner.
Q: Could the lawyer act as counsel for the petition if the client opposed it?
A: No. The opinion concluded that advocating for the petition against a current client violates DR 5-105(A), and DR 5-108(A) may bar the lawyer even where the objector is a former client; separate counsel should be retained.
Q: Could the lawyer serve as counsel if the lawyer would be a witness?
A: No. The opinion concluded that where a contested incapacity hearing makes it obvious the lawyer would testify, DR 5-102(A) requires the lawyer to step aside and retain separate counsel.
Q: Was serving as both attorney-in-fact and counsel for oneself a conflict in itself?
A: No. The opinion concluded the dual role is not a per se conflict where the client does not oppose the petition and the lawyer will not be a witness, given the court's oversight of fees and the appointed court evaluator, though the lawyer must still assess any DR 5-101 personal interest.
Background and rules framework
The opinion interpreted New York's former Code of Professional Responsibility: DR 4-101 (confidences and secrets), DR 5-101 (personal-interest conflicts), DR 5-102(A) (lawyer as witness), DR 5-105(A) (conflict with a current client), and DR 5-108(A) (conflict with a former client), with EC 7-11 and EC 7-12 on representing clients of impaired capacity. It applied New York's durable power of attorney statute (General Obligations Law article 5, title 15) and Article 81 of the Mental Hygiene Law. The Model Rule analogues are Rule 1.14 (client with diminished capacity), Rule 1.7 (concurrent conflicts), Rule 3.7 (lawyer as witness), Rule 1.9 (former clients), and Rule 1.6 (confidentiality). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR and EC numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.14 (diminished capacity); MR 1.7 (concurrent conflicts); MR 3.7 (lawyer as witness); MR 1.9 (former clients); MR 1.6 (confidentiality)
- NY DR 4-101, DR 5-101, DR 5-102(A), DR 5-105(A), DR 5-108(A)
Statutes:
- N.Y. Mental Hygiene Law article 81 (guardianship), including sections 81.16(f) and 81.19(d)
- N.Y. General Obligations Law article 5, title 15 (durable power of attorney)
Other opinions cited:
- ABA Formal Op. 96-404 (1996): appointment of a guardian is a serious deprivation of rights, to be avoided if less drastic solutions exist
- N.Y. City 1997-2: maintaining a normal relationship with a client of impaired capacity
- N.Y. State 610 (1990): a lawyer may serve as a fiduciary and represent that fiduciary role
See also
- NY State Bar Op. 775: Incapacitated client and safeguarding a will
- NY State Bar Op. 1046: Court appointments in guardianship when the firm represents the care facility
- NY State Bar Op. 777: Acquiring an interest in the subject of litigation
Source
- Landing page: https://nysba.org/opinion-746/
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