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APPEARANCE; PROTECTION OF PERSONS UNDER DISABILITY; COUNSEL FOR INDIGENT ADULTS IN SURROGATE`S COURT PROCEEDINGS
Section 401. Appearance of parties. 402. Appearance for infant, incompetent, conservatee or person under disability. 403. Appointment of guardian ad litem. 403-a. Proceedings for the commitment of the guardianships and custody of infants; appointment of guardians ad litem. 404. Qualification and duties of guardian ad litem. 405. Compensation of guardian ad litem. 406. Person under disability bound by proceeding. 407. Assignment of counsel for indigent persons. S 401. Appearance of parties 1. Who may appear. A party other than an infant, incompetent or conservatee may appear and prosecute or defend a special proceeding in person or by attorney, except that a corporation or voluntary association shall appear by attorney. An infant by the guardian of his property, an incompetent by the committee of his property and a conservatee by his conservator may appear and prosecute or defend a special proceeding in person or by attorney as provided in 402. 2. How made. An appearance is made by pleading, by waiver, by serving upon the attorney for the petitioner and filing with the clerk a signed notice of appearance or by appearance in person noted upon the record in open court. The notice may be signed by any person authorized under subdivision 1 to appear for the party. 3. Evidence of attorney`s authority. Where a party is a non-domiciliary or has not been served personally with process within the state the court may require (a) that any person appearing for the party furnish acknowledged evidence of authority so to appear and (b) the authorization to set forth whether there has been executed previously by the party (i) any power of attorney or similar instrument relating to the party`s interest in the estate and (ii) any assignment of the interest. 4. Appearance by waiver of process. Any adult competent party may also appear by an acknowledged waiver of issuance and service of process which upon filing with the clerk is equivalent to the filing of an acknowledged notice of appearance under subdivision 2. In a probate proceeding the waiver shall state the date of the will to which it relates and that a copy has been furnished or examined. 5. Termination of appearance of consul. When a consular official shall have appeared in behalf of an alien, a subsequent appearance by the attorney in fact of the alien pursuant to recorded power of attorney or appearance by an authorized attorney shall terminate the appearance of the consul. S 402. Appearance for infant, incompetent, conservatee or person under disability 1. An infant may appear by the guardian of his property, an incompetent by the committee of his property, and a conservatee by his conservator. The appointment of a guardian ad litem does not bar the guardian, committee or conservator from appearing as a party. The person so appearing and his attorney shall each file on or before the return day of process an affidavit showing (a) that he is qualified to protect their rights, (b) whether he is related to or connected in business with any party to the proceeding or the attorney for any party, (c) whether he is entitled to share in the estate in which the infant, incompetent or conservatee is interested or is in any way interested therein, (d) whether he has any interest adverse to or in conflict with that of the infant, incompetent or conservatee and (e) such additional facts as may be required by the court. 2. A person under disability shall appear by a guardian ad litem where no appearance is made as provided in subdivision one or where the court so directs because of possible adversity or conflict of interest or for other cause. S 403. Appointment of guardian ad litem 1. By nomination. (a) An infant over the age 14 years or his parent or guardian may petition the court on or before the return day of process for the appointment of a named attorney as his guardian ad litem. There shall be filed with the petition the affidavit of the attorney showing (i) that he is qualified to protect the rights of the infant and has no interest adverse to him and (ii) the circumstances which led to his nomination. (b) There shall also be filed with the petition the affidavit of the parent with whom the infant resides, or if not residing with a parent, by the person having his legal custody or an adult person with whom he resides, showing that the affiant (i) consents to the appointment of the nominated attorney, (ii) has no interest adverse to that of the infant and if he has an adverse interest, whether he has influenced the infant in the nomination and (iii) such additional facts as may be required by the court. (c) The court may appoint the nominated attorney guardian ad litem unless because of adversity or conflict of interest or for other cause a different appointment is required. 2. By the court. A person under disability who does not appear by his guardian, committee or conservator pursuant to 402 shall except as otherwise expressly provided appear by a guardian ad litem appointed by the court on nomination or on its own initiative whenever such person is a necessary party or for other reason the court deems it necessary to appoint a guardian ad litem to protect the interests of such party. 3. An appearance for a person under disability by a guardian ad litem is not required and the court may dispense with the same whenever (a) in an uncontested probate proceeding such person will receive a share equal to or greater than the share to which he would be entitled if decedent had died intestate, (b) in an accounting proceeding such person receives a specific bequest or a specific devise or a general legacy of a stated sum of money and the accounting party shows to the satisfaction of the court that such person has received his legacy or devise or will receive same in full under the decree to be made in the proceeding, (c) in any proceeding the public administrator receives process or notice in behalf of the person under disability. (d) in a probate proceeding the decedent is survived by a spouse who receives the entire estate under the propounded instrument and the petition alleges that probate assets do not exceed $50,000. In such case, letters testamentary should limit the executor to the collection of assets which, in the aggregate, do not exceed $50,000.
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S 403-a. Proceedings for the commitment of the guardianships and custody of infants; appointment of guardians ad litem 1. The court shall appoint a guardian ad litem to represent an infant in a proceeding for the commitment of the guardianship and custody of such infant brought pursuant to section three hundred eighty-four-b of the social services law or in a proceeding where a revocation of an adoption consent is opposed under section one hundred fifteen-b of the domestic relations law. 2. As used in this section, "guardian ad litem" refers to an attorney admitted to practice law in the state of New York and designated under this section to represent infants in proceedings for the commitment of the guardianship and custody of such infant brought pursuant to section three hundred eighty-four-b of the social services law. 3. (a) The office of court administration may enter into an agreement with a legal aid society for the society to provide guardians ad litem for the surrogate`s court in proceedings brought pursuant to section three hundred eighty-four-b of the social services law in a county having a legal aid society.OFF; (b) The appellate division of the supreme court for the judicial department in which a county is located may enter into an agreement, subject to regulations as may be promulgated by the administrative board of the judicial conference, with any qualified attorney or attorneys to serve as guardian ad litem for the surrogate`s court in that county in proceedings brought pursuant to section three hundred eighty-four-b of the social services law. (c) The appellate division of the supreme court for the judicial department in which a county is located may designate a panel of guardians ad litem for the surrogate`s court in that county in proceedings brought pursuant to section three hundred eighty-four-b of the social services law, subject to the approval of the administrative board of the judicial conference. For this purpose, it may invite a bar association to recommend qualified persons for consideration by such appellate division in making its designation, subject to standards as may be promulgated by such administrative board. 4. (a) An agreement pursuant to paragraph (a) of subdivision three of this section may be terminated by the office of court administration by serving a notice on the society sixty days prior to the effective date of the termination. (b) No designations pursuant to paragraph (c) of subdivision three of this section may be for a term of more than one year, but successive designations may be made. The appellate division proceeding pursuant to such paragraph (c) may at any time increase or decrease the number of guardians ad litem designated in any county and may rescind any designation at any time, subject to the approval of the office of court administration. 5. (a) If the office of court administration proceeds pursuant to paragraph (a) of subdivision three of this section, the agreement shall provide that the society shall be reimbursed on a cost basis for services rendered under the agreement. The agreement shall contain a general plan for the organization and operation of the providing of guardians ad litem by the respective legal aid society, approved by the administrative board, and the office of court administration may require such reports as it deems necessary from the society.OFF; (b) If an appellate division proceeds pursuant to paragraph (b) or (c) of subdivision three of this section, guardians ad litem shall be compensated and allowed expenses and disbursements in the same amounts established by section seven hundred twenty-two-b of the county law. 6. The administrative board of the judicial conference may prescribe standards for the exercise of the powers granted to the appellate divisions under this section and may require such reports as it deems desirable. 7. The cost of guardians ad litem under this section shall be payable by the state of New York within the amounts appropriated therefor.OFF; 8. Upon an appeal in a proceeding brought pursuant to section three hundred eighty-four-b of the social services law, the court to which such appeal is taken, or is to be taken, shall appoint a guardian ad litem to represent the infant, in accordance with the provisions of this section. S 404. Qualification and duties of guardian ad litem 1. A guardian ad litem shall be an attorney admitted to practice in New York. 2. Before entering upon his duties he shall file a consent to act and unless he has previously done so, a statement of no interest adverse to or in conflict with the person under disability. 3. He shall file an appearance and take such steps with diligence as deemed necessary to represent and protect the interests of the person under disability, and file a report of his activities together with his recommendation upon the termination of his duties or at such other time as directed by the court. S 405. Compensation of guardian ad litem 1. For services rendered a guardian ad litem shall receive reasonable compensation to be allowed by the court payable from any or all of the following, in such proportion as directed by the court: (a) the estate, (b) the interest of the person under disability, or (c) for good cause shown, any other party. 2. The court may direct that the fixation of the amount of compensation be reserved for future determination. 3. If an infant, incompetent or conservatee appears by his guardian, committee or conservator pursuant to 402 the court may allow the guardian, committee or conservator such sum as the court deems reasonable for his counsel fees and other expenses incurred in protection of the infant`s, incompetent`s, or conservatee`s interest subject to the same requirements in the case of a guardian ad litem of the provisions of the preceding subdivisions of this section. 4. The provisions of this section shall not apply to guardians ad litem appointed by the court pursuant to section four hundred three-a of this chapter. S 406. Person under disability bound by proceeding Whenever a guardian ad litem shall be appointed for a person under disability as defined in this act or an infant, incompetent or conservatee shall appear by his guardian, committee, or conservator, respectively, or where such appointment is not required under or is dispensed with pursuant to power conferred by this act the proceeding shall be binding upon such person to the same extent as if such person was under no disability. S 407. Assignment of counsel for indigent persons 1. (a) Each of the persons described below in this subdivision has the right to the assistance of counsel. When such person first appears in court, the surrogate shall advise such person before proceeding that he has the right to be represented by counsel of his own choosing, of his right to have an adjournment to confer with counsel, and of his right to have counsel assigned by the court in any case where he is financially unable to obtain the same; (i) the respondent in any proceeding under section three hundred eighty-four-b of the social services law; (ii) the respondent in any proceeding for the approval of a surrender instrument under section three hundred eighty-four of the social services law; (iii) the parent of a child in any adoption proceeding who opposes the adoption of such child; (iv) the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding before the court in which the court has jurisdiction to determine such custody; (v) any of the above persons upon an appeal in any of the above proceedings. (b) In addition to the cases listed in paragraph (a) of this subdivision, a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of counsel is mandated by the constitution of this state or of the United States, and includes such determination in the order assigning counsel. 2. Any order for the assignment of counsel issued under this section shall be implemented as provided in article eighteen-B of the county law.