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Guardian ad Litem Contends Court Lacks Jurisdiction


In this proceeding for leave to compromise an action for wrongful death and conscious pain and suffering, the decedent was survived by his wife and two children all of whom presently reside in Ecuador. A New York Probate Lawyer said the decedent died as a result of injuries he sustained in a construction accident in Bronx, New York. The Court issued limited letters to petitioner, Juan Chavez, decedent’s uncle, to commence this action. Thereafter the action was commenced. The Supreme Court, Bronx County, approved the compromise of the action for $790,000.00, allowed attorney disbursements of $5,897.70 and attorneys’ fees of $261,367.43. This estate proceeding was commenced to fix the allocation of the recovery, reimburse the funeral creditors and fix the distribution of the balance among the distributees who suffered a pecuniary loss.

A Kings Estate Administration Lawyer said that, the petitioner served a citation in this matter by international certified mail, return receipt requested, upon decedent’s widow, Blanca Germania Guzman Marquez. Petitioner also served Blanca Germania Guzman Marquez with the citation on that date as the mother of decedent’s infant daughters, Blanca Raquel Pesantez Guzman and Carla Leonor Pesantez Guzman. Another citation was served that date on the infant, Blanca Raquel Pesantez Guzman since she was over 14 years old on that date. Service was complete on the date of the mailing thereof. No one appeared on that date. By court order, a guardian ad litem was appointed for Blanca Raquel Pesantez Guzman (hereinafter “Raquel”) and Carla Leonor Pesantez Guzman (hereinafter “Carla”). Thereafter, the guardian ad litem filed his report.
A Kings Estate Administration Lawyer said that, in the guardian ad litem’s report he points out that Raquel turned eighteen after he was appointed but before finalization of his report. The guardian ad litem reports that he has examined the file in this matter and concludes that the court lacks jurisdiction over Raquel presumably because of her eighteenth birthday and the fact that she is no longer under a disability. The guardian ad litem reports that he communicated this fact to petitioner’s attorney and suggested that he send a waiver and consent to Ecuador for Raquel’s signature and filed it with the Court. The guardian ad litem made his recommendations with respect to the compromise subject to jurisdiction. No waiver and consent to the relief requested was ever filed by Raquel.

The issue in this case is whether the probate court has jurisdiction over Raquel, notwithstanding her reaching the age of majority, hence no longer under a disability.

The Court disagrees with the guardian ad litem’s contention that the court lacks jurisdiction over Raquel. She was properly served at a time when she was an infant and thus, except for her reaching majority, she would be bound by a determination made in the proceeding.
However, Long Island Probate Lawyers said the Court held that, in a probate and estate administration proceedings, the representation of an infant by a guardian ad litem terminates upon the infant’s attainment of her majority. As Surrogate Bennett pointed out, by statute a guardian ad litem must be an attorney and since his term of office, as to Raquel, has expired he is “disabled” within the meaning of CPLR 321(c), which provides that where an attorney for a party dies or is otherwise disabled no further proceedings shall be taken against the party for whom that attorney appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party, either personally or in such manner as the court directs. The Court held that, the appropriate action in these circumstances is to relieve the guardian ad litem of his duties as to Raquel and direct that petitioner’s counsel give her notice of the right to obtain counsel to represent her. A Staten Island Probate Lawyer said the petitioner’s counsel may serve such notice of the right to obtain counsel upon Raquel by international certified mail, translated into Spanish or he may file her consent to the relief requested in this Court. Thirty days after such service upon her, if she fails to appear or consent, the compromise may be submitted for decision.

If you have issues regarding estate administration, you need the help of a Kings Estate Administration Attorney. A Kings Probate Attorney can provide you legal advice as to the technicalities and rules of procedure in a Surrogate Court. Stephen Bilkins and Associates have Kings Estate Litigation Attorneys that can represent our case.

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