MHL ARTICLE 81 - New York State Unified Court System

Matter of Saks, NYLJ, 9/15/97, p. 25, col.1 (Sup. Ct., Nassau Cty.)(Rossetti, J.)
While marshaling his mother’s assets, guardian (son) discovered that most were in out-of-state banks
and that his estranged brother, a Michigan resident, had access to them under power-of-attorney.
Because of bad relationship between guardian and his brother, court appointed an independent
guardian ad litem to investigate funds and any possible wrongdoing. Once guardian ad litem found
potential misappropriation of over $400,000 of the funds, court issued order authorizing Article 81
guardian to commence proceedings in Michigan to set address invalid transfers by his brother. Court
also ordered Article 81 guardian to pay guardian ad litem with funds from guardianship account.
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T.W. by Enk v. Brophy, 124 F.3d 893 (7 Cir., 1997)
FRCP Rule 17(c) distinguishes between guardian or other "duly-appointed representative," on the
one hand--in short, a general representative--and a guardian ad litem or a next friend, on the other
hand--a special representative. If general representative has conflict of interest (for example because
he is named as the defendant in the child's suit), or fails without reason to sue or defend (as the case
may be), child may, with court's permission, sue by another next friend, or court may appoint a
guardian ad litem for child.
Querubin Parras v. Anna Ricciardi, 185 Misc. 2d 209; 710 N.Y.S. 2d 792 (City Court, City of
NY 2000)
Plaintiff landlord did not have to commence Art. 81 proceeding before suing elderly, possibly
incapacitated woman, so long as she was properly served at nursing home. Court can appoint GAL
if needed.
Kings 28 Assoc. v. Raff, 167 Misc. 2d 351; 636 N.Y.S. 2d 257 (Civ. Ct., Cty. of NY, 1995)
Housing court judge can appoint GAL to protect tenants rights without going through full Art. 81
proceeding.
a. Compensation of GAL
Albroon v. Gurwin, 2012 NY Slip Op 31534U; 2012 N.Y. Misc. LEXIS 2735 (Sup. Ct. Nass.
Cty, 2012) (Mahon, J.)
Citing the “interests of justice and fairness” and the court’s heavy obligation to protect a litigant who
may be incapacitated but who has not yet been so adjudicated, the Court declined to vacate its earlier
order directing defendant to establish an escrow account to pay a GAL who was appointed to
determine the need to apply for an Art. 81 guardian for a possibly incapacitated person despite
defendant’s argument that plaintiff should not bear the cost of plaintiff’s counsel’s failure to first
obtain an Article 81 guardian before commencing this tort claim proceeding.
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