Kay v State of New York,

___ AD3d ___, 2015 NY Slip Op 01784 [2d Dept., 2015]

This was a medical malpractice case in the Court of Claims, brought on behalf of a developmentally disabled adult woman by her father, who along with her mother had been made the co-guardian of her person. Guardianships under both SCPA Article 17-A and Mental Hygiene Law Article 81 have two aspects, guardianship of the property and guardianship of the person. Protection of the ward’s property, including the right to sue and be sued, rests in the property guardian (as the name implies). A guardian of the person, but not of the property, has no standing to sue on behalf of the ward. Therefore, when the defendant moved to dismiss for lack of standing, the motion was properly granted.

CPLR 1201 sets forth the priority of persons entitled to appear in an action on behalf of an infant or  person declared incompetent, or an adult incapable of prosecuting or defending her rights. First on the list is a guardian ad litem, followed by a guardian of the property. Only then comes the priority of a custodial parent of an infant. Since the ward here was an adult, that option was not open to the father. From the opinion, it appears that there was no guardian ad litem. What is not clear from the opinion is whether any other person had been appointed as guardian of the ward’s property. Assuming not, in order to prosecute this suit on the ward’s behalf the father could have sought to be appointed either as guardian of her property or as guardian ad litem.

Note, by the way, that CPLR 1201 uses obsolete terminology regarding the ward. The parents had been appointed under SCPA Article 17-A, and the finding was that their daughter was developmentally disabled, not incompetent. A proceeding under Mental Hygiene Law Article 81 leads to a finding that the subject is incapacitated, not incompetent. The rules regarding standing are the same, however. We may hope that at some point the Legislature will update CPLR 1201 to specifically include the modern variants in appointment of guardians.