An appeals court panel heard competing legal views on whether a person under guardianship or conservatorship may select and retain private counsel or whether that authority vests with the court or the fiduciary after adjudication.

Justice Reuben opened the session and the court said it would rehear Case No. 231394, listed in the record as JCS. Attorney Matthew (Attorney) Cukier told the court he had been appointed at trial to represent JCS and later was appointed conservator. Cukier said his position at trial had been to press the “presumption of capacity” and that, before a judge adjudicates incapacity, an individual should be able to retain counsel of their choosing.

Cukier argued that after adjudication the decision to retain counsel should generally fall to the court or to the conservator or guardian, because the appointment reflects an adjudication that limits some decisionmaking rights. He acknowledged, however, that courts must “accord great weight” to an incapacitated person’s expressed preference and that judges retain equitable authority to appoint counsel under chapter 190B §5-106.

The justices pressed on how disputes are accommodated in practice. The panel discussed the Zaltman procedure — a special hearing used to determine whether an already-adjudicated protected person has capacity to retain counsel — and the statutory contrast with emergency psychiatric proceedings under chapter 123 where appointment of counsel is routine. Cukier acknowledged that a court can void contracts entered by a person later adjudicated incapacitated and that attorneys in such circumstances may have remedies (e.g., quantum meruit or liens) for fees earned before a contract is avoided.

Justice DeAngelo and Justice Smith repeatedly asked how frequently a court should intervene and what standard should govern a motion to strike privately retained counsel. Cukier pointed the bench to the rules of professional conduct (citing Rule 1.14 and 1.16) as a limit and guide for attorney conduct when a client shows diminished capacity. He warned that a flat rule requiring appointment of counsel in every guardianship matter would overburden courts and families and risk turning many non-adversarial cases into adversarial litigation.

The argument highlighted tension between two aims: protecting the autonomy and expressed preferences of protected persons, and protecting estates and decisionmaking processes from dissipative or exploitative spending. As Cukier summed up of the statutory framework, judges have authority under §5-106 to appoint counsel, but the practical line between judicial appointment and individual selection depends on timing (pre- or post-adjudication), the nature of the conservatorship order, and whether a litigant can show that a privately retained attorney’s involvement is appropriate.

The court heard further argument on related procedural safeguards and thanked counsel before recessing. The panel did not announce a decision at the hearing.