Bringing suit against a person for whom a guardian has been appointed isn’t for the faint of heart. 

A person seeking to litigate against a guardian in its representative capacity, or a judicially declared incapacitated person (“IP”), cannot proceed without permission from the court which appointed the guardian. 

For example, in re Linden-Rath, a 103-year-old widow to a German count was judicially declared an IP pursuant to Article 81 of New York’s Mental Hygiene Law (“MHL”). The IP’s landlord served a notice of termination and brought a proceeding to evict the IP claiming the condition of her apartment was in such deplorable condition that it constituted a nuisance. The guardian moved for a permanent stay of the notice of termination, meaning the proceeding was put on pause. In re Linden-Rath, the Supreme Court of New York County held:

Legal precedent clearly supports a motion by a guardian seeking a stay of litigation, upon the basis that approval of the appointing court must be secured to sue a guardian in his or her representative capacity. Once a guardian is appointed for an incapacitated person, litigation against a guardian as representative of the incapacitated person should not proceed without permission of the court which appointed the guardian (citations omitted).

The Court wrote that the obligation to obtain authority from the appointing court to sue a guardian cannot be waived by the guardian or by action of another court. In addition, the appearance of the guardian in an action is not tantamount to permission to sue. 

The Court reasoned that while title to property of an IP remains with the IP, the property of an IP is subject to the control of the court. The IP’s lease, which was in danger of being terminated, was a property interest that was subject to control of the Court, and therefore, the landlord was required to seek permission from the Court to sue.

When faced with an application for permission to litigate against an IP, the court has two options: it may either (1) grant permission to litigate; or (2) deal with the matter summarily, meaning the court makes it “determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised.”

Plaintiffs who learn of this procedural barrier only after filing suit are not completely out of luck. The court may grant leave to sue an IP nunc pro tunc, meaning the court decision will have the effect of an earlier date.

One seeking to litigate against an IP must also take care to serve the proper party. The plaintiff must sue the guardian in their representative capacity when the subject of the suit pertains to a matter included in the scope of the guardian’s powers (See In re BLACK, 2002 N.Y. Misc. LEXIS 1442 (N.Y. Sup. Ct. October 16, 2002)).

Attorneys and plaintiffs looking to sue an IP in New York should take great care, and thoroughly prepare, before bringing an action or proceeding against an IP.