Rule 27.Unemancipated Minors or Incapacitated Parties

Rule 27 makes sure a minor or a person who cannot manage their own affairs still has someone capable representing their interests in court. If the party already has a guardian or conservator, that guardian or conservator represents them there. If not, the court appoints a guardian ad litem — a competent adult whose job is to act in the party’s interests for purposes of that lawsuit. Section B makes this appointment mandatory whenever an unemancipated minor, or a person who is incapacitated or financially incapable under the definitions in ORS 125.005, is a party without an existing guardian or conservator. Who may ask for the appointment turns on which side of the case the person is on. For a minor plaintiff, a minor who is 14 or older can apply personally; a younger minor needs a relative, friend, or other interested person to apply. For a minor defendant who is 14 or older, the minor gets the same window allowed for appearing and answering the summons to apply personally; after that window closes, or if the minor is under 14, any other party, relative, friend, or interested person can apply. For an incapacitated or financially incapable plaintiff, a relative, friend, or other interested person applies. For an incapacitated or financially incapable defendant, a relative, friend, or other interested person can apply within that same appearance-and-answer window, after which any other party can apply. Section C adds a separate, discretionary track for a person with a disability as defined in ORS 124.005, who may ask the court to appoint a guardian ad litem by motion and supporting affidavits showing the appointment would help the person prosecute or defend the case.

Sections D through H lay out the mechanics. Anyone seeking a guardian ad litem must file a motion backed by affidavits or declarations proving, by a preponderance of the evidence, that the party is a minor, is incapacitated, is financially incapable, or is a person with a disability. A court can appoint someone right away, before notice goes out, though that appointment gets reviewed if an objection is later filed. Notice normally has to go out by first-class mail within 7 days of filing the motion, and who receives it depends on the party’s age. For a minor, notice reaches the minor (if 14 or older), the minor’s parents, custodians, whoever held principal responsibility for the minor’s care during the 60 days before the motion was filed, and, if the minor has no living parents, anyone nominated as a fiduciary for the minor in a parent’s will or other written instrument. For a party 18 or older, notice reaches the person, the person’s spouse, parents, and adult children (or, lacking those, the closest relatives), any interested cohabitant, any fiduciary, trustee, health care representative, or attorney-in-fact already tied to the person, and, depending on the person’s circumstances, agencies such as the Department of Veterans Affairs, the Department of Human Services, the Oregon Health Authority, the Department of Corrections, or a foreign consulate. The notice itself has to identify who is asking, explain that objections must be filed within 14 days, and tell the recipient how to object in writing to the court clerk. If someone objects, the court holds a hearing to resolve it, and for good cause, the court can waive notice entirely or change these requirements.

Section I protects money or property that flows to a party through a settlement when that party’s guardian ad litem was appointed under Section B. Except where ORS 126.725 permits otherwise, a conservator — not the guardian ad litem — has to seek and obtain court approval of the settlement, unless the court expressly authorizes the guardian ad litem to settle instead, for good cause shown and on whatever terms the court requires.