Unless the 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, a person judicially declared to be incompetent shall appear by the committee of his property, and a conservatee shall appear by the conservator of his property. A person shall appear by his guardian ad litem if he is an infant and has no guardian of his property, parent, or other person or agency having legal custody, or adult spouse with whom he resides, or if he is an infant, person judicially declared to be incompetent, or a conservatee as defined in section 77.01 of the mental hygiene law and the court so directs because of a conflict of interest or for other cause, or if he is an adult incapable of adequately prosecuting or defending his rights.
§ 1201.Representation of infant, incompetent person, or conservatee
Article 12. Infants, Incompetents and Conservatees · Last amended 1981 · Last verified July 21, 2026
In one sentenceCPLR 1201 identifies who must appear in a New York lawsuit on behalf of a child, a person judicially declared incompetent, or a conservatee, and requires a guardian ad litem whenever no qualifying representative exists or the court finds a conflict of interest.
Full Text of CPLR 1201
Plain-English Summary
Section 1201 sets the pecking order for who stands in for someone who can't appear in a lawsuit on their own. A child normally appears through the guardian of their property. If there's no such guardian, a parent with legal custody takes that role; if there's no such parent, another person or agency with custody steps in; and if the child is married, an adult spouse who lives with them can appear instead. A person judicially declared incompetent appears through the committee of their property, and a conservatee appears through the conservator of their property.
A guardian ad litem is needed when none of those representatives exist — for instance, a child with no property guardian, parent, custodian, or resident spouse. The court can also appoint one for a child, an adjudicated incompetent, or a conservatee who already has a representative, if it finds a conflict of interest or other cause to require one. And an adult who has never been declared incompetent but can't adequately prosecute or defend their own rights can get a guardian ad litem too.
Frequently Asked Questions
Does a child need a guardian ad litem to sue in New York?
Only if the child has no guardian of their property, no parent with legal custody, no other custodian, and no resident spouse. If one of those exists, that person appears for the child instead.
Who represents a person declared incompetent in a New York lawsuit?
The committee of that person's property appears on their behalf, unless the court appoints a guardian ad litem instead because of a conflict of interest or other cause.
Can a parent sue on behalf of their child in New York?
Yes, if the parent has legal custody of the child and there is no guardian already appointed over the child's property.
What happens if a child is married when a lawsuit is filed?
An adult spouse who lives with the child can appear on the child's behalf under CPLR 1201.
Can an adult without a formal incompetency finding still get a guardian ad litem?
Yes. CPLR 1201 allows a guardian ad litem for any adult who is incapable of adequately prosecuting or defending their own rights, even without a judicial declaration of incompetence.
Advisory Committee Notes
(See also advisory committee notes preceding this section under subheading “Representatives generally.”) This section is new. It replaces parts of CPA §§ 202 and 208. Section 202 requires that an infant appear by a guardian ad litem despite the fact that there is an appointed guardian of his property. Such a procedure is unnecessary and wasteful. The infant should appear by his already appointed guardian unless the court otherwise directs just as an incompetent person appears by the committee of his property. See NY Temp Comm’n on the Courts Rep III 228, Leg Doc 6(b) (1957). In cases where such guardian or committee has an adverse interest the court should appoint a guardian ad litem. CPA § 208; cf. new CPLR rule 1202(a). The court may direct representation by a guardian ad litem “for other cause,” such as the fact that the guardian or committee is a nonresident.
Another substantial change in former law is made by permitting a parent to appear for his child if there is no appointed guardian of the child’s property. In many cases the interests of the infant can be adequately protected by such representation and the expense of a guardian ad litem may be saved. If the court believes that a guardian ad litem is necessary to protect the infant’s interests, the last sentence of the section gives broad authority to the court to order such representation. Representation by a guardian ad litem might well be required in actions involving the title to real property.
This section uses the words “guardian of his property.” Such a guardian may be appointed in any one of three ways: by court order, by will or by deed (see Surr Ct Act § 172) and would include a “general guardian of the property” of an infant. Section 81 of the Domestic Relations Law states that a guardian by will may not lawfully act until the will is admitted to probate and that a guardian by deed likewise cannot lawfully act until the deed is executed and recorded pursuant to § 187 of the Surrogate’s Court Act; therefore, a condition precedent is imposed upon such a guardian acting under this section.
The last phrase of the last sentence of this section requires that a defendant, other than an infant or judicially declared incompetent, who is incapable of adequately protecting his rights be represented by a guardian ad litem. Under former law, such a defendant’s interests were protected in essentially the same manner. CPA § 226(1) permitted a court to order that a copy of a summons also be delivered to a designated person and after such an order is made service is not complete until a copy of the summons is so delivered. The designated person is required to examine the case and protect the rights of the defendant until and unless a special guardian is appointed. RCP 44. In reality, the designated person is a special guardian. If no order requiring service of process on a designated person on behalf of such a defendant is made the proper procedure is to have a guardian ad litem appointed. See 19 Carmody-Wait, Cyclopedia of New York Practice 715 (1955). There is no reason to require that the guardian ad litem for such a defendant be served with a summons. His appointment will apprise him of the action. Under new CPLR § 309 service will have already been made and this service should be sufficient in itself to give the court jurisdiction and stop the running of the statutes of limitation.
Adoption of this provision permits omission of RCP 44 and the last sentence of CPA § 203.
New CPLR rule 1202(a) permits the infant or incompetent to be protected “at any stage” of the action on the court’s own initiative. Where a party has information indicating that another party is incompetent to protect his interests it should be revealed to the court so that the court can appoint a guardian. Failure to suggest the party’s inadequacy to the court would constitute a fraud which could be the basis for a motion to set aside any judgment.
Amendment History
Add, L 1962, ch 308; amd, L 1968, ch 844, § 2; L 1974, ch 606, § 1; L 1981, ch 115, § 21, eff May 18, 1981.
Source & verification. Provision text, History, and Advisory
Committee Notes are reproduced verbatim from the Consolidated Laws of New York.
Last verified July 21, 2026.
· Official source
Also known as: representing a minor in a New York lawsuitguardian ad litem for infant New Yorkwho sues on behalf of a child in New Yorkincompetent person representation lawsuit NYconservatee legal representation New Yorkcommittee of the property New York lawsuit