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New York Incapacitated Persons Must Be Given Proper Legal Notice

New York Court proceedings involving Incapacitated Persons require careful scrutiny by the Court. When a person who lacks capacity is a party to a legal action such as a defendant or respondent, it is imperative that such person’s rights are protected since their ability to defend themselves is impaired.

In the typical Guardianship Proceeding under Article 81 of the Mental Hygiene Law (“MHL”), the Court will appoint either a Court Evaluator or an attorney to represent the Alleged Incapacitated Person (“AIP”). Sometimes the Court will appoint both an attorney and a Court Evaluator. MHL Section 81.10 entitled “Counsel” sets forth the circumstances in which an attorney will be appointed by the Court for the AIP. MHL 81.09 entitled “Appointment of Court Evaluator,” discusses such appointment. While a Court Evaluator does not act as the attorney for an AIP, the Evaluator will interact with the AIP and perform an investigation for the Court and can, among other duties, determine whether the Court should be informed to appoint an attorney for the AIP. All in all, the MHL statutes provide for a number of avenues to insure that the AIP is protected in the Court proceedings.

Serious issues arise, however, when a person who is suffering from an incapacity becomes involved in Court proceedings that are not covered by the MHL. For example, it is not uncommon for such a person to be ill and hospitalized or affected by dementia or Alzheimer’s disease. Due to these types of circumstances, a person may forget, or be unable, to pay bills such as their rent or mortgage. Non-payment of these items will eventually result in lawsuits for eviction or foreclosure. Unfortunately, someone who is sued by a landlord or mortgage company may have no one around to help them or to seek the appointment of an Article 81 Guardian. In such cases the impaired person is completely vulnerable and often unable to defend themselves in an ordinary eviction or foreclosure action. In these cases if the Court is aware of a person’s disability the Court has the authority to appoint a limited guardian to protect a person’s interest in the particular lawsuit. Section 1201 of the New York Civil Practice Law and Rules allows a Court to appoint a Guardian ad Litem for an adult person who is “incapable of adequately prosecuting or defending his rights.”

In many instances the Court may be unaware of a person’s condition since the person, due to lack of understanding or ability, merely defaults and does not appear before the Court to represent his interests. In a recent case entitled Financial Freedom Acquisition LLC v. Evelyn L. Jackson, the Honorable Charles J. Markey (Supreme Court, Queens County), in a decision dated December 24, 2012 and reported in a New York Law Journal on January 29, 2013, dismissed a foreclosure lawsuit against an individual who had been in a nursing home at the time of the Summons and Complaint were allegedly served on her. After an extensive investigation by the Court appointed Guardian ad Litem, the Court found that the property owner lacked the mental capacity to understand the Court papers and it was questionable whether the Court papers were properly served upon the homeowner in the nursing home.

As a New York Guardianship Attorney, I have represented many clients involved in Article 81 proceedings. Sometimes, these proceedings are precipitated by other Court actions such as landlord/tenant evictions or foreclosure lawsuits that require the appointment of a Guardian to help protect the rights of an AIP. In these matters, it may be that multiple Court actions are occurring at the same time and quick action is needed so that an AIP’s home is not lost through no fault of their own.


New York Guardianship Attorney Jules Martin Haas, Esq. has been representing clients in New York Guardianship Proceedings throughout the past 30 years in Queens, Nassau and Westchester County. If you or someone you know is involved with or has questions about a New York Guardianship or Article 81 proceedings, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.

Jules Martin Haas provides his clients and members of the community with a free monthly e-newsletter which contains articles covering a variety of legal topics including estate planning, financial matters and real estate. If you wish to be placed on the e-newslist, simply e-mail me at jules.haas@verizon.net. You can cancel receiving the newsletter at anytime.

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