§ 7.1 Capacity and Persons with Protected Status

• Library: Oregon Civil Pleading and Litigation (OSBar) (2020 Ed.)

§ 7.1 CAPACITY AND PERSONS WITH PROTECTED STATUS

ORCP 27 governs the capacity of persons with a protected status to prosecute or defend an action. "When a minor or a person who is incapacitated or financially incapable, as those terms are defined in ORS 125.005, is a party to an action and does not have a guardian or conservator, the person shall appear by a guardian ad litem appointed by the court." ORCP 27 B (emphasis added). Enactment of the rule made no significant changes in existing law, so authorities based on prior law are still reliable.

See § 7.3-1 (minor defined), § 7.4-1(a) (incapacitated defined), § 7.4-1(b) (financially incapable defined). See generally Guardianships, Conservatorships, and Transfers to Minors (OSB Legal Pubs 2018).

§ 7.1-1 Definitions

§ 7.1-1(a) Capacity

A person who is unable to prosecute or defend an action is said to lack capacity. Typically, a person who is unable to prosecute or defend an action suffers from either a legal disability (such as when the person is a minor) or a mental or physical impairment. See Estate of Hendrickson v. Warburton, 276 Or 989, 998, 557 P2d 224 (1976). See § 7.3-1 (minor defined), § 7.4-1(a) (incapacitated defined), § 7.4-1(b) (financially incapable defined).

ORCP 27 governs the most common procedural problems that arise once a party is or has been adjudicated unable to prosecute or defend an action.

§ 7.1-1(b) Immunity

A person may be immune from legal action because of a special status conferred by law. For instance, judges and prosecutors enjoy immunity from actions arising out of the discharge of their official duties. See § 9.5-1 to § 9.5-2 and § 9.7-3 to § 9.7-4. Also, parents may be immune from claims alleging certain types of tortious behavior. See Winn v. Gilroy, 296 Or 718, 681 P2d 776 (1984). See also § 7.5-4(b) (suits between parents and children; parental immunity).

§ 7.1-1(c) Protected Person

A person with a protected status lacks the procedural capacity to prosecute or defend an action. See ORCP 27 (discussed in § 7.1). Such a person therefore cannot prosecute or defend an action in person, but must proceed through a guardian, a conservator, or a guardian ad litem. ORCP 27. Once a representative is appointed for the person, the representative is properly in court for all purposes and is subject to the same rules of procedure as other litigants.

NOTE: Under ORS chapter 125 (protective proceedings), the term protected person is defined as "a person for whom a protective order has

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