MHL ARTICLE 81 - New York State Unified Court System

for any other cause which to the court shall appear just. (§ 81.35) Thus, the IP can sue his guardian
(Self Help) to bring its alleged misconduct to the attention of the State court which appointed SHCS
by making a motion to remove the guardian (NYCHA commenced a nonpayment proceeding. Self
Help, allegedly made no effort to pay the arrearage or to contest the eviction proceedings. As a
result, the IP appeared in Civil Court himself, where he "explained to the Judge that [his] ...
Guardians where [sic] conspiring with [NYCHA] ... to defraud [him] ... out of [his] ... apartment by
refusing to aid [him] ... and protect [his] ... rights ...."). See also, related case- In re Michael Tazwell
Walker, 2005 Bankr. LEXIS 1576 (Bankruptcy Ct, EDNY 2005) (Feller, J.) (Order by bankruptcy
court dismissing petition with prejudice, on grounds inter alia, that person for who guardians is
appointed under MHL Art 81 lacks capacity to file petition in own name.
st
In re Irving Wechsler, 3 AD.3d 424; 771 N.Y.S.2d 117 (1 Dept. 2004)
Guardian may not commence divorce action on behalf of ward. Although the guardian does have
the power to maintain a civil proceeding, that grant of power does not include filing for divorce
because whether to pursue a divorce is too personal a decision.
Matter of the Application for an Individual with a Disability For Leave to Change Her
Name, 195 Misc.2d 497; 760 N.Y.S. 2d 293 (Civ. Ct., Richmond Cty 2003) (Straniere, J.)
Mildly MR individuals was permitted to change her name in Civil Court without a guardian. Court
was initially uncertain whether it could hear case without guardian but, after reviewing purpose of
Art. 81 ultimately decides that she is not so functionally limited as to be unable to petition for her
name change. Court also points out that it has no jurisdiction over guardianship and would have to
refer the case to Supreme Court first and further that is no Article 81 Part in Richmond County and
recommends statutory amendments to alter this situation.
Matter of Black (Seiber), 2002 N.Y Misc LEXIS 1442, October 31, 2001, Sup. Ct., Suff. Cty.
(Berler, J.)
Although CPLR 1201 refers to service of legal papers on incompetents and conservatees and it
should also be construed to include incapacitated persons for whom Art. 81 guardians have been
appointed -Ward may not be sued directly- Guardian must be sued in representative capacity and
only then, with leave of the guardianship court which can hold hearing to determine whether to grant
such leave as suit will affect the guardianship estate and cost IP legal expenses. Guardian who is an
attorney may not act as IP’s attorney in a suit against the IP and guardian in his representative
capacity-conflict of interest and appearance of impropriety arises.
Matter of M.G., NYLJ, 9/3/02 (Sup. Ct., Westchester Cty. 2002)(Rosato, J.)
Person adjudicated incapacitated may not contract to hire an attorney. Attorney who was retained
by an IP who knew about his clients prior adjudication of incapacity could not recover fees, even in
quantum meruit.
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