WHO WILL GET EVICTED?

This case is awful, it is not justice, it is stupidity!!

The worst part about this decision is the question that the appellate term left unanswered. Must the incapacitated tenant consent to an eviction? While that might usually make sense, how can a "disabled" tenant who can not appreciate what is going on meaningfully participate in the process?

In this case, the tenant claims he didn't consent. What if he did? Why would that have made a difference? It should NOT matter if an incapacitated individual consents or not. (Most don't by the way.) The standard should be whether the decision was in the tenant's best interests in light of all the facts and circumstances (as reflected in the record). While that standard may not have been met in this case, that does not mean we should be adding MORE artificial barriers to the mix. Dumb, dumb, dumb!!

I will not take another appointment. I would be afraid that whatever I did would be "inadvised" and expose me to liability. (After all, we can still be sued for malpractice. There is no GAL "immunity.") It has gotten so bad, that anyone agreeing to take a GAL assignment might need to have a guardian appointed!!

Thanks for you comments and insights, Terrance.

It certainly appears as if we're in for a bumpy ride as far as GAL related cases are concerned.

How can the City take the position that a guardian ad litem does not have the right to surrender possession, when the stipulation in this case was most likely prompted by Adult Protective Services telling the guardian that it would not pay rent arrears?

Was this person ever really incapacitated? The Appellate Term accepted that he had the capacity to retain counsel and challenge the stipulation. Shouldn't there have been an initial hearing determining he no longer needed a guardian before proceeding on the merits?

Gines:

Did you see Terrance's comments? (I may not have released it before your entry.)

Unfortunately, this case leaves a few too many "holes," and will make representation of some of the most vulnerable members of our society exceedingly difficult (if not impossible).

A consent requirement would effectively vitiate the utility of the statute -- CPLR Article 12. And, as Terrance astutely points out, I'm not sure if any weight can, or should, be accorded to a ward's consent to any aspect of the process.

Until these issues are fleshed out by our appellate courts, we will never know when an agreement reached with a GAL is enforceable.

Onward?

Terrance is on point.

Why would anyone consent to be a guardian ad litem if the courts are not going to watch their backs. If a litigant needs a GAL, it is because the court has determined that she is not in a position to look after her rights in that proceeding. A guardian ad litem steps into the ward's shoes and has the authority to take a position against the wishes, and without the consent of a ward. [Matter of Aho, 39 N.Y.2d 241.]

The problem in Housing Court is that the GAL has evolved into a sort of hybrid representative: a combination of attorney, liaison between Adult Protective Services and the court and public benefits advocate. Since the GAL is usually getting paid by APS, they have no incentive to be confrontational with the agency when it opts not to pay rent arrears in a case.

Gines:

As always, you're right on the money.

Many judges throughout the state have observed ("off the record") that the GAL process has become a farce.

This case only confirms that the system is broken and in dire need of repair.

It is my understanding that the New York State Bar's Real Property Law Section has been looking at some guardian related issues. We hope they bring this issue to the forefront so that our Legislators will take action.

As to Terence's question, as to why the courts would want a ward's consent to an eviction, the answer is quite simple:

It makes them feel good.

No, Lucas, you're always right on the money. You highlight these issues and give us readers a forum to discuss them.

I hope the State Bar comes up with some potential solutions to propose to the legislature.

I hear Dov Treiman may be working on a proposed bill.

Dov, can you comment?

The Landlord Tenant Committee of the New York State Bar Association has recommended a piece of legislation co-authored by Bruce Gould and me with regard to protecting Guardians ad Litem from suits by their wards. We have been advised that the Office of Court Administration considers this a tremendously important piece because they are having difficulty finding willing guardians. As soon as we have a written piece from them in support of the legislation, the Executive Committee of the State Bar will be prepared to move this bill through the Legislature. If passed, it would call upon the Attorney General's office to take over the defense of guardians ad litem when sued by their wards with respect to litigation before the Housing Court. The bill as currently drafted is limited to that venue -- for now. However, should this legislation pass, the State Bar would be interested in ultimately passing legislation to make these protections universal.

Our sincerest thanks to you, Dov, and Judge Gould, for fighting the fight.

However, it looks like the Committee will next need to look into this whole "consent" mishegoss. (It minimally warrants a commentary in your Housing Court Reporter or one of your related publications.)

Onward!