Asking Permission Rather than Forgiveness

June 18, 2015 § 3 Comments

That old saw about it being easier to ask forgiveness than to get permission may apply in some aspects of life. It does not, however, apply in guardianships.

I wish I had a few bucks for every time I have seen a lawyer open a guardianship, qualify the guardian, and then go off and file a PI or wrongful death case “for the benefit of the ward.” Later, the attorney has to beg forgiveness, because he had no permission.

MCA 93-13-27 spells out specifically what is required:

All suits, complaints, actions and administrative and quasi judicial proceedings for or on behalf of a ward for whom a general guardian has been appointed shall be brought in the name of the general guardian for the use and benefit of such ward, be such general guardian that of his estate or that of his estate and person or that of his person only. And all such actions, suits or proceedings shall be commenced only after authority has been granted to such general guardian by proper order or decree of the court or chancellor of the county in this state in which the guardianship proceedings are pending, upon proper sworn petition and supporting oral testimony. A certified copy of said order authorizing such suit or proceedings shall be attached to the complaint or instrument or document originally filed as commencing such action, suits or proceedings. If such proceedings be commenced by act of said general guardian, then on request therefor a certified copy of said order or decree shall be submitted by said general guardian as evidence of his authority to the person or persons with or through whom the guardian may deal in performing any act commencing such proceedings. [Emphasis added]

So before you go crashing off into circuit, county, or district court, you must: (a) file a sworn petition in the guardianship case outlining what it is you propose to do; (b) set the matter for hearing; and (c) present oral testimony in support of your petition. It should go without saying that the petition can only by filed by a guardian who has been properly appointed by the court, has posted whatever bond was required, has taken the oath, and has been issued letters of guardianship.

When the lawsuit is filed, a certified copy of the order authorizing it must be attached as an exhibit to the complaint.

There can be some ramifications here. If I were a defendant, I think I might sit back and let the statute of limitations run on the claim, and then file to dismiss the lawsuit for lack of standing. How would you feel as the attorney for the guardian in that situation?


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