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THE JUDGE IN THIS MENTAL HYGIENE LAW PROCEEDING SHOULD NOT HAVE HELD THE HEARING ON WHETHER APPELLANT WAS AN INCAPACITATED PERSON IN HER ABSENCE WITHOUT FIRST FINDING SHE COULD NOT MEANINGFULLY PARTICIPATE; IN ADDITION, COUNSEL SHOULD HAVE BEEN APPOINTED FOR APPELLANT BECAUSE SHE WAS CONTESTING THE GUARDIANSHIP PETITION (THIRD DEPT).

The First Department, vacating the judgment that appellant is an incapacitated person and remanding for a hearing, determined Supreme Court should not have held the Mental Hygiene Law section 81.11 hearing in appellant’s absence without first making the finding she was unable to meaningfully participate in it. In addition, Supreme Court should have appointed counsel for the appellant because she was contesting the guardianship petition:

Under the unique facts of this case [not described in the decision], we are exercising our inherent power to vacate the order and judgment in the interest of substantial justice … . Vacatur is warranted in the interest of justice because the court held a hearing pursuant to Mental Hygiene Law § 81.11 in respondent’s absence and without having made a finding regarding her inability to meaningfully participate in the hearing … . In addition, the court failed to appoint counsel to represent respondent even though she was contesting the guardianship petition … . Matter of Jenkins v Gina B., 2024 NY Slip Op 05637, Third Dept 11-14-24

Practice Point: A hearing under the Mental Hygiene Law to determine whether a person is incapacitated should not be held in the person’s absence without a finding he or she could not meaningfully participate in the hearing.

Practice Point: Where a person is contesting a guardianship petition under the Mental Hygiene Law, he or she is entitled to appointed counsel.

 

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