Suing on Behalf of a Ward
June 15, 2016 § 2 Comments
I frequently see petitions to appoint a guardian on behalf of a ward whose “only asset is a claim for personal injuries” to be asserted in a suit to be filed in circuit or federal court. I sign the order appointing and then don’t hear anything further from the participants until some time later after they have either hit the jackpot or have some middling settlement to approve.
The problem with the above is that it omits several steps. Several important, even vital, steps.
Take a look at MCA 93-13-27. Here it is in a nutshell:
- All “suits, complaints, actions and administrative and quasi judicial proceedings for and on behalf of a ward for whom a general guardian has been appointed” must be brought in the name of the guardian for use and benefit of the ward.
- Even though the foregoing language uses the term “general guardian,” the statute goes on to apply itself equally to general guardians, guardians of the estate only, guardians of the person and estate, and guardians of the person only.
- Any such action may be commenced only after authority has been granted to the 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 the order authorizing the filing of the suit must be attached to the pleading commencing the action.
- If suit or other proceeding is commenced, a certified copy of the authorizing order must be submitted “as evidence of his authority.”
The intent of the statute is clear that (a) you must get authority before proceeding, and (b) you must put the court or tribunal and other party on notice of your authority.
What might happen if you did not get authority and your case languished on a circuit court docket for more than three years after the occurrence and the other side moved to dismiss per MRCP 12(b)(6). Might you have a statute-of-limitations problem?
The Better Chancery Practice Blog 
Does this apply to an action by a natural parent and legal guardian of a minor where no guardian has been appointed by a court?
My opinion without research … it applies to court-appointed guardians. BUT … there may be case law contra out there.