Article 12. Infants, Incompetents and Conservatees

INFANTS, INCOMPETENTS AND CONSERVATEES

The Sections of Article 12 of the CPLR of New York :

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NY CPLR § 1201. REPRESENTATION OF INFANT, INCOMPETENT PERSON, OR CONSERVATEE

Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his property or, if there is no such guardian, by a parent having legal custody, or, if there is no such parent, by another person or agency having legal custody, or, if the infant is married, by an adult spouse residing with the infant, a person judicially declared to be incompetent shall appear by the committee of his property, and a conservatee shall appear by the conservator of his property.  A person shall appear by his guardian ad litem if he is an infant and has no guardian of his property, parent, or other person or agency having legal custody, or adult spouse with whom he resides, or if he is an infant, person judicially declared to be incompetent, or a conservatee as defined in section 77.01 of the mental hygiene law   1 and the court so directs because of a conflict of interest or for other cause, or if he is an adult incapable of adequately prosecuting or defending his rights.

NY CPLR RULE RULE 1202. APPOINTMENT OF GUARDIAN AD LITEM

(a) By whom motion made.  The court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of:

  1. an infant party if he is more than fourteen years of age;  or
  2. a relative, friend or a guardian, committee of the property, or conservator;  or
  3. any other party to the action if a motion has not been made under paragraph one or two within ten days after completion of service.

(b) Notice of motion.  Notice of a motion for appointment of a guardian ad litem for a person shall be served upon the guardian of his property, upon his committee or upon his conservator, or if he has no such guardian, committee, or conservator, upon the person with whom he resides.  Notice shall also be served upon the person who would be represented if he is more than fourteen years of age and has not been judicially declared to be incompetent.

(c) Consent.  No order appointing a guardian ad litem shall be effective until a written consent of the proposed guardian has been submitted to the court together with an affidavit stating facts showing his ability to answer for any damage sustained by his negligence or misconduct.

NY CPLR § 1203. DEFAULT JUDGMENT

No judgment by default may be entered against an infant or a person judicially declared to be incompetent unless his representative appeared in the action or twenty days have expired since appointment of a guardian ad litem for him.  No default judgment may be entered against an adult incapable of adequately protecting his rights for whom a guardian ad litem has been appointed unless twenty days have expired since the appointment.

NY CPLR § 1204. COMPENSATION OF GUARDIAN AD LITEM

A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person’s other property.  No order allowing compensation shall be made except on an affidavit of the guardian or his attorney showing the services rendered.

NY CPLR § 1205. LIABILITY FOR COSTS OF INFANT, JUDICIALLY DECLARED INCOMPETENT, OR CONSERVATEE, OR REPRESENTATIVE

An infant, a person judicially declared to be incompetent, a conservatee, a person for whom a guardian ad litem has been appointed, or a representative of any such person, shall not be liable for costs unless the court otherwise orders.

NY CPLR § 1206. DISPOSITION OF PROCEEDS OF CLAIM OF INFANT, JUDICIALLY DECLARED INCOMPETENT OR CONSERVATEE

Except as provided in EPTL 7-4.9 , any property to which an infant, a person judicially declared to be incompetent or a conservatee is entitled, after deducting any expenses allowed by the court, shall be distributed to the guardian of his property, the committee of his property or conservator to be held for the use and benefit of such infant, incompetent, or conservatee except that:

(a) in the case of an infant who is married to and resides with an adult spouse, the court may order that the property be distributed to such adult spouse for the use and benefit of the infant;  or

(b) if the value of the property does not exceed ten thousand dollars the court may order the property distributed to a person with whom such infant, incompetent or conservatee resides or who has some interest in his welfare to be held for the use and benefit of such infant, incompetent or conservatee;  or

(c) the court may order that money constituting any part of the property be deposited in one or more specified insured banks or trust companies or savings banks or insured state or federal credit unions or be invested in one or more specified accounts in insured savings and loan associations, or it may order that a structured settlement agreement be executed, which shall include any settlement whose terms contain provisions for the payment of funds on an installment basis, provided that with respect to future installment payments, the court may order that each party liable for such payments shall fund such payments, in an amount necessary to assure the future payments, in the form of an annuity contract executed by a qualified insurer and approved by the superintendent of financial services pursuant to articles fifty-A and fifty-B of this chapter.  The court may elect that the money be deposited in a high interest yield account such as an insured “savings certificate” or an insured “money market” account.  The court may further elect to invest the money in one or more insured or guaranteed United States treasury or municipal bills, notes or bonds.  This money is subject to withdrawal only upon order of the court, except that no court order shall be required to pay over to the infant who has attained the age of eighteen years all moneys so held unless the depository is in receipt of an order from a court of competent jurisdiction directing it to withhold such payment beyond the infant’s eighteenth birthday.  Notwithstanding the preceding sentence, the ability of an infant who has attained the age of eighteen years to accelerate the receipt of future installment payments pursuant to a structured settlement agreement shall be governed by the terms of such agreement.  The reference to the age of twenty-one years in any order made pursuant to this subdivision or its predecessor, prior to September first, nineteen hundred seventy-four, directing payment to the infant without further court order when he reaches the age of twenty-one years, shall be deemed to designate the age of eighteen years;  or

(d) the court may order that the property be held for the use and benefit of such infant, incompetent or conservatee as provided by subdivision (d) of section 1210.

NY CPLR § 1207. SETTLEMENT OF ACTION OR CLAIM BY INFANT, JUDICIALLY DECLARED INCOMPETENT OR CONSERVATEE, BY WHOM MOTION MADE; SPECIAL PROCEEDING; NOTICE; ORDER OF SETTLEMENT

Upon motion of a guardian of the property or guardian ad litem of an infant or, if there is no such guardian, then of a parent having legal custody of an infant, or if there is no such parent, by another person having legal custody, or if the infant is married, by an adult spouse residing with the infant, or of the committee of the property of a person judicially declared to be incompetent, or of the conservator of the property of a conservatee, the court may order settlement of any action commenced by or on behalf of the infant, incompetent or conservatee.  If no action has been commenced, a special proceeding may be commenced upon petition of such a representative for settlement of any claim by the infant, incompetent or conservatee in any court where an action for the amount of the proposed settlement could have been commenced.  Unless otherwise provided by rule of the chief administrator of the courts, if no motion term is being held and there is no justice of the supreme court available in a county where the action or an action on the claim is triable, such a motion may be made, or special proceeding may be commenced, in a county court and the county judge shall act with the same power as a justice of the supreme court even though the amount of the settlement may exceed the jurisdictional limits of the county court.  Notice of the motion or petition shall be given as directed by the court.  An order on such a motion shall have the effect of a judgment.  Such order, or the judgment in a special proceeding, shall be entered without costs and shall approve the fee for the infant’s, incompetent’s or conservatee’s attorney, if any.

NY CPLR RULE RULE 1208. SETTLEMENT PROCEDURE; PAPERS; REPRESENTATION

a) Affidavit of infant’s or incompetent’s representative.  An affidavit of the infant’s or incompetent’s representative shall be included in the supporting papers and shall state:

  1. his name, residence and relationship to the infant or incompetent;
  2. the name, age and residence of the infant or incompetent;
  3. the circumstances giving rise to the action or claim;
  4. the nature and extent of the damages sustained by the infant or incompetent, and if the action or claim is for damages for personal injuries to the infant or incompetent, the name of each physician who attended or treated the infant or incompetent or who was consulted, the medical expenses, the period of disability, the amount of wages lost, and the present physical condition of the infant or incompetent;
  5. the terms and proposed distribution of the settlement and his approval of both;
  6. the facts surrounding any other motion or petition for settlement of the same claim, of an action to recover on the same claim or of the same action;
  7. whether reimbursement for medical or other expenses has been received from any source;  and
  8. whether the infant’s or incompetent’s representative or any member of the infant’s or incompetent’s family has made a claim for damages alleged to have been suffered as a result of the same occurrence giving rise to the infant’s or incompetent’s claim and, if so, the amount paid or to be paid in settlement of such claim or if such claim has not been settled the reasons therefor.

(b) Affidavit of attorney.  If the infant or incompetent or his representative is represented by an attorney, an affidavit of the attorney shall be included in the supporting papers and shall state:

  1. his reasons for recommending the settlement;
  2. that directly or indirectly he has neither become concerned in the settlement at the instance of a party or person opposing, or with interests adverse to, the infant or incompetent nor received nor will receive any compensation from such party, and whether or not he has represented or now represents any other person asserting a claim arising from the same occurrence;  and
  3. the services rendered by him.

(c) Medical or hospital report.  If the action or claim is for damages for personal injuries to the infant or incompetent, one or more medical or hospital reports, which need not be verified, shall be included in the supporting papers.

(d) Appearance before court.  On the hearing, the moving party or petitioner, the infant or incompetent, and his attorney shall attend before the court unless attendance is excused for good cause.

(e) Representation.  No attorney having or representing any interest conflicting with that of an infant or incompetent may represent the infant or incompetent.

(f) Preparation of papers by attorney for adverse party.  If the infant or incompetent is not represented by an attorney the papers may be prepared by the attorney for an adverse party or person and shall state that fact.

NY CPLR § 1209. ARBITRATION OF CONTROVERSY INVOLVING INFANT, JUDICIALLY DECLARED INCOMPETENT OR CONSERVATEE

 A controversy involving an infant, person judicially declared to be incompetent or conservatee shall not be submitted to arbitration except pursuant to a court order made upon application of the representative of such infant, incompetent or conservatee;  provided, however, that a claim brought on behalf of an infant pursuant to paragraph one or two of subdivision (f) of section three thousand four hundred twenty of the insurance law may be submitted to arbitration without a court order.

NY CPLR RULE RULE 1210. GUARDIAN OF INFANT

(a) Petition for appointment;  by whom presented;  contents.  An infant, if of the age of fourteen years or more, or a relative or friend of an infant, may present a petition to the court for appointment of a guardian.  The petition shall state the age and residence of the infant, the name and residence of any living parent and of the person proposed as guardian, the relationship if any which such person bears to the infant, and the nature, status and value of the infant’s estate.

(b) Hearing.  The court shall ascertain the age of the infant, the amount of his personal property, the gross amount or value of the rents and profits of his real estate during his minority, and the sufficiency of the security offered by the proposed guardian.  If the infant is of the age of fourteen years or more, the court shall examine him as to his voluntary nomination of or preference for a suitable guardian;  if he is under the age of fourteen, the court shall select and appoint a suitable guardian.

(c) Undertaking.  The court shall make an order requiring or dispensing wholly or partly with an undertaking, in an amount and according to the conditions set forth in section seventeen hundred eight of the surrogate’s court procedure act .

(d) Direction as to management of estate.  The court in its discretion may direct that the principal of the estate or any part of it be invested in bonds of the state of New York or of the United States, or invested in bonds or other obligations of any county, city, town, village or school district of the state of New York, or deposited with any bank, trust company, insured savings and loan association or insured savings bank or insured state or federal credit union which has been designated as a depository for such fund;  or invested in a bond and mortgage on unincumbered  1 and improved property within the state, having a value, to be shown to the satisfaction of the court, of at least double the amount of principal invested, for the benefit of the infant, and may direct that only the interest or income be received by the guardian.

(e) Filing of certified copy of order of appointment.  Upon the appointment of a guardian of the person or property, or both, of an infant, the guardian shall file a certified copy of the order of his appointment with the clerk of the surrogate’s court of the county in which he has been appointed.

NY CPLR RULE RULE 1211. ALLOWANCE FOR INFANT’S SUPPORT

(a) Petition to supreme court, county court or surrogate’s court;  contents.  A petition to the supreme court, county court or the surrogate’s court for the application of an infant’s property or a portion thereof to the infant’s support, maintenance or education shall set forth in detail:

  1. the amount and nature of the infant’s property, where it is situated and how invested, his income from such property or any other source and any claim against the infant;
  2. whether or not the infant’s parents are living and, if either of them is living, all circumstances relative to their ability to support the infant, and, if neither of them is living, the names of other persons legally obligated to support the infant and the circumstances relative to their ability to support the infant;  and
  3. the terms of any previous order made by any court within or without the state for similar relief and the disposition made of any property pursuant thereto.

(b) Notice.  Such notice as the court shall direct shall be given to:

  1. the guardian of the property of the infant, if the petition is presented by a person other than such guardian;
  2. the infant’s father if he is living or, if not, then to the infant’s mother or, if neither parent is living, then to the person with whom the infant resides;  and
  3. the infant if he is of the age of fourteen years or more.

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