Article 12 Infants, Incompetents & Conservatives Flashcards
CPLR 1202
A guardian ad litem is a guardian appointed for:
(a) a particular lawsuit
(b) all purposes
(c) the purpose of representing a corporation
(d) the purpose of conserving real property.
Answer: (a)
CPLR 1202 A guardian ad litem is a guardian appointed by a court to prosecute or defend a particular action on behalf of an infant or incompetent.
CPLR 1201
With regard to an infant, the infant:
(a) must appear by a guardian ad litem
(b) may appear by a parent having legal custody if the infant does not have a guardian of his property
(c) may appear by an attorney retained solely by the infant
(d) may appear pro se (i.e., on his own behalf)
(e) none of the above.
Answer: (b)
CPLR 1201 provides that unless a 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. Thus, choice (b) is the correct answer.
CPLR 1202
The court in which an action is triable may appoint a guardian ad litem at any stage of the action:
1. on its own initiative
2. on motion of an infant, if he is over fourteen
3. on motion of a relative or friend of an infant, a judicially declared incompetent, or a conservatee
4. on motion of a conservator or committee of the property.
(a) 1, 2, 3 or 4
(b) only 2, 3 or 4
(c) only 2 or 4
(d) only 2 or 3
(e) only 1 or 2.
Answer: (a)
CPLR 1202(a) provides that all four choices are a basis for appointing a guardian ad !item (i.e., a special guardian appointed by the court to prosecute or defend an action).
CPLR 1203
A default judgment may not be entered against an infant or person judicially declared to be incompetent:
(a) in any case
(b) unless his representative has appeared in the action or twenty days have expired since appointment of a guardian ad litem
(c) unless his representative has appeared in the action and twenty days have expired since that appearance
(d) unless a guardian ad litem has been appointed in the action.
Answer: (b)
CPLR 1203 provides that no judgment by default (i.e., judgment for failure to appear in an action) may be entered unless the infant’s or incompetent’s representative has appeared in the action or twenty days have expired since appointment of a guardian ad litem. This statute provides additional protection to the infant or incompetent.
Choice (d) is incorrect, because a guardian ad !item does not necessarily have to be appointed in an action. The infant may appear by a representative as stated in CPLR 1201.
CPLR 1204
A court may allow a guardian ad litem to be compensated:
(a) from a special public fund set up for that purpose
(b) only from a recovery had on behalf of the person represented
(c) only from a recovery had on behalf of the person represented or by payment in whole or in part by any other party
(d) from a recovery had on behalf of the person represented, or by payment in whole or in part by any other party, or from other property of the person represented.
Answer: (d)
CPLR 1204 provides that a court may allow a guardian ad litem reasonable compensation to be paid in whole or in part by (i) any other party, or (ii) from any recovery on behalf of the infant or incompetent, or (iii) from such person’s other property.
CPLR 1208
In the settlement of an action commenced on behalf of an infant or an incompetent there shall be:
(a) an affidavit of the infant or incompetent in support of the proposed settlement
(b) an affidavit of the infant’s or incompetent’s representative
(c) an affidavit of the infant’s or incompetent’s attorney, if the infant or incompetent is represented by an attorney
(d) only (b) and (c) are correct
(e) (a), (b), and (c) are correct.
Answer: (d)
CPLR 1208 governs the settlement procedure with respect to claims made on behalf of an infant or incompetent. This statute requires, among other things, an affidavit of the infant’s or incompetent’s representative and an affidavit of the infant’s or incompetent’s attorney (if represented by an attorney). These requirements are designed to protect the legal interests of the represented party.
Choice (a) is incorrect since CPLR 1208 does not require such an affidavit.
CPLR 1209
A controversy involving an infant, a person judicially declared to be incompetent, or a conservatee:
(a) shall not be submitted to arbitration, in any case
(b) shall first be submitted to arbitration, in all cases
(c) be submitted to arbitration, in the discretion of the person’s representative, without prior court approval
(d) may generally not be submitted to arbitration except pursuant to court order.
Answer: (d)
CPLR 1209 generally requires a court order before submitting a controversy involving an infant, a judicially declared incompetent or a conservatee to arbitration. (See statute for a narrow exception to this general rule.)
CPLR 1210
A petition for the appointment of a guardian for an infant may be made by:
(a) any infant
(b) any relative of an infant
(c) any friend of an infant
(d) only (b) and (c) are correct
(e) only (a) and (b) are correct.
Answer: (d)
CPLR 1210(a) provides that an infant fourteen years of age or more, or a relative or friend of an infant may petition the court for appointment of a guardian. Thus, choices (b) and (c) are correct.
Choice (a) is incorrect since infants under fourteen years of age may not petition.
CPLR 1211
Select all correct answers:
When a petition to a court seeks application of an infant’s property for his support, maintenance or education, notice of the application shall be given:
(a) to the infant, irrespective of his age
(b) to both parents of the infant
(c) to the Commissioner of Social Services in the county where the application is made
(d) to the guardian with whom the infant resides
(e) to the Surrogate of the county where the application is made.
Answers: (b) and (d)
CPLR 1211(b) requires that with regard to the application described in this question that notice be given to (i) the guardian of the property of the infant (but only if the petition was submitted by someone other than such guardian); and (ii) the infant’s parents and guardians (iii) the infant if fourteen years of age or older. Thus, choices (b) and (d) are correct.
