The need to appoint a Litigation Guardian to represent the interests of an incapable person adds extra complexity to the commencement of any legal proceeding that involves an incapable individual. Although the process by which the Litigation Guardian is appointed is fairly well detailed in the Rules of Civil Procedure, with Rule 7.03(2.2) for example directing the information which must be contained in the affidavit of the prospective Litigation Guardian, it can be easy to forget that until the Litigation Guardian is formally appointed the Litigation Guardian has no authority to represent the alleged incapable individual, and the alleged incapable individual potentially has standing to represent themselves in the proceeding. This raises the question of what involvement, if any, the alleged incapable person may have in the proceeding until the Litigation Guardian is appointed, and do you need to personally serve the alleged incapable person with any materials prior to the appointment of the Litigation Guardian and/or potentially give them the ability to oppose the appointment?
Rules 7.03(6) of the Rules of Civil Procedure provides the alleged incapable person must be served with any materials seeking the appointment of the Litigation Guardian at least 10 days prior to the hearing seeking such an appointment, with Rule 7.03(7) noting the notice of such an intention can be contained in the originating process. Rule 7.03(10)(c) then further provides the prospective Litigation Guardian must provide evidence as to the personal service of the originating process upon the alleged incapable person as part of the affidavit to be sworn seeking their appointment.
As a result of Rules 7.03(6) and 7.03(10)(c) the default position is that the alleged incapable person must be personally served with the originating process as well as advised of the intention to appoint a Litigation Guardian on their behalf. Although Rule 7.08 notes that the Motion to appoint a Litigation can be made without notice to the alleged incapable person under certain circumstances, such a waiver is not automatic, as the party seeking to waive the service requirement would need to specifically seek and obtain such a waiver to forego the default service requirements.
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