Article 12. Infants, Incompetents and Conservatees · Last amended 1981 · Last verified July 21, 2026
A court can appoint a guardian ad litem at any point in a case, on its own initiative or on motion. Three groups can make that motion: an infant party over fourteen, a relative, friend, guardian, committee, or conservator, or, if none of them has moved within ten days after service is complete, any other party to the action.
Notice of the motion goes to the person's property guardian, committee, or conservator, or, if there is none, to whoever the person lives with. If the person is over fourteen and hasn't been judicially declared incompetent, they must be notified too.
The appointment doesn't take effect until the proposed guardian files written consent, along with an affidavit showing they can cover any damage caused by their own negligence or misconduct.
An infant party over fourteen, a relative, friend, guardian, committee, or conservator, or any other party to the case if none of them has moved within ten days after service is complete.
Yes, unless a court has judicially declared them incompetent. Anyone over fourteen must be notified of the motion in addition to their existing guardian, committee, or conservator.
The proposed guardian must file written consent along with an affidavit showing they can answer for any damage caused by their own negligence or misconduct.
Yes, but only after ten days have passed since service was completed without a motion from the infant, a relative or friend, or an existing guardian, committee, or conservator.
The person's existing property guardian, committee, or conservator, or, if none exists, whoever they live with, plus the person themselves if they're over fourteen and not judicially incompetent.
Subd (a) is derived from the first sentence of CPA § 203, and parts of §§ 202, 207 and 208 and RCP § 39. The use of the term “special guardian” is abolished. RCP 40 uses the words “guardian ad litem” if the appointment is made in an action and “special guardian” if made in a special proceeding. The distinction is unnecessary. Subparagraph 1 and, insofar as it relates to infants, subparagraph 2, are derived from the first part of the first sentence of CPA § 203. One change of substance has been made—any guardian of the property may move for the appointment of a guardian ad litem. Thus, two restrictions imposed by CPA § 203 have been eliminated. That section permitted application to be made only by a general or testamentary guardian if the infant was under fourteen years of age. There is no reason to exclude a guardian of the property appointed by deed (see Dom Rel Law § 81) or to prevent any guardian from moving for the appointment of a guardian ad litem whatever the age of the infant. Subparagraph 2 permits a motion to be made by a relative or friend of the defendant for the appointment of a guardian ad litem for a defendant who is incapable of adequately protecting his rights but who is not an infant or a person judicially declared incompetent. There is no similar provision in the CPA or RCP. Such a provision will aid in protecting the rights of such a defendant when the friend but not the adverse party has knowledge of the defendant’s incapacity. Subparagraph 2 also permits such a motion to be made by a committee of the property of the incompetent; there is no similar provision in the former act or rules. The committee should be allowed to make such a motion for there may be times when his interest is adverse to his ward’s interest. He should be permitted— indeed, he is morally obligated—to bring his interest to the court’s attention by such a motion. Subparagraph 3 is taken from the last part of the first sentence of CPA § 203 and from RCP rule 39. Two changes have been made: first, the time restriction on another party so moving has been reduced from twenty to ten days and, second, the proposed provision is made applicable to persons judicially declared incompetent and defendants incapable of adequately protecting their rights as well as to infant plaintiffs by objection of § 1201. In all these situations another party to the action should be allowed to move for appointment of a guardian ad litem since without such an appointment a judgment which is rendered may be voidable. See notes to § 1201.
Subd (b) is derived from CPA § 204. It has a broader scope than the CPA section, however, since it is not confined to actions involving infants. The subdivision requires that notice of motion be given to a defendant alleged to be incapable of adequately protecting his rights since such a person should be afforded an opportunity to contest the motion.
Subd (c) is taken from subparagraphs 3 and 5 of RCP § 40.
Add, L 1962, ch 308, eff Sept 1, 1963; amd, L 1981, ch 115, § 22, eff May 18, 1981.