§ 7.2 Representation of Persons with a Protected Status

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

§ 7.2 REPRESENTATION OF PERSONS WITH A PROTECTED STATUS

A minor or an incapacitated or financially incapable party must appear in an action by a conservator, guardian, or guardian ad litem, as may be appropriate. ORCP 27. ORCP 27 A provides as follows:

When a person who has a conservator of that person's estate or a guardian is a party to any action, the person shall appear by the conservator or guardian as may be appropriate or, if the court so orders, by a guardian ad litem appointed by the court in which the action is brought. The appointment of a guardian ad litem shall be pursuant to this rule unless the appointment is made on the court's motion or a statute provides for a procedure that varies from the procedure specified in this rule.

Guardians and conservators may be appointed by the court for purposes other than to bring a particular suit on behalf of a person with a protected status. See ORS 125.300-125.540. See generally Guardianships, Conservatorships, and Transfers to Minors (OSB Legal Pubs 2018). A guardian ad litem is appointed by the court solely to appear in litigation for a person with a protected status. See ORCP 27.

§ 7.2-1 Guardians

§ 7.2-1(a) In General

A guardian is a person appointed to care for a minor or an incapacitated person. ORS 125.305(1).

After determining that conditions for the appointment of a guardian have been established, the court may appoint a guardian as requested if the court determines by clear and convincing evidence that:
(a) The respondent is a minor in need of a guardian or the respondent is incapacitated;
(b) The appointment is necessary as a means of providing continuing care and supervision of the respondent; and
(c) The nominated person is both qualified and suitable, and is willing to serve.

ORS 125.305(1).

The guardianship order must be "no more restrictive upon the liberty of the protected person than is reasonably necessary to protect the person." ORS 125.305(2). (ORS 125.005(7) defines the term protected person as "a person for whom a protective order has been entered.") "A protected person retains all legal and civil rights provided by law except those that have been expressly limited by court order or specifically granted to the guardian by the court." ORS 125.300(3).

When a person who has a guardian is a party to an action, the person must appear by the guardian. ORCP 27 A. See § 7.2 (representation of persons with a protected status).

§ 7.2-1(b) Appointment of Guardian

The court appoints a fiduciary in a protective proceeding, including a guardian, by limited judgment. ORS 125.005(2); ORS 125.030(1). For minors, the court may appoint a guardian when the minor is "in need of a guardian." ORS 125.305(1)(a). For incapacitated adults, the court may appoint a guardian "only as is necessary to promote and protect the well-being of the protected person." ORS 125.300(1). See also § 7.3-2(b) (appointment of guardian ad litem).

§ 7.2-1(c) Powers and Duties of Guardian

The powers of a guardian are limited by statute. ORS 125.320. For example, a guardian may not authorize the sterilization of a protected person and may not use funds from the protected person's estate to pay for room and board furnished by the guardian or a member of the guardian's family. ORS 125.320(1)-(2). Under ORS chapter 125, the powers and duties of a guardian for an incapacitated adult are generally the same as those of a guardian for a minor. The statutes in ORS chapter 125 refer to both incapacitated adults and minors as protected persons. The term protected person is defined as "a person for whom a protective order has been entered." ORS 125.005(7). (For other definitions and terms used in ORS chapter 125, see ORS 125.005.)

Generally, "[t]he guardian of a minor has the powers and responsibilities of a parent who has legal custody of a child." ORS 125.315(1)(e). A guardian for a minor or incapacitated person may, for example, collect and receive money on behalf of the minor or incapacitated person. ORS 125.315(1)(f). A guardian of a minor may also prosecute claims of the protected person, including those for personal injury. See ORCP 27; ORS 125.315(1)(e). In an action for personal injuries to a minor, the guardian may sue on behalf of the minor. ORS 125.315(1)(e); Peters v. Johnson, 124 Or 237, 243-44, 264 P 459 (1928). Only a personal representative, however, may bring a wrongful-death action for the minor's death. ORS 30.020(1).

On the other hand, a guardian of an incapacitated person generally may not prosecute the person's claims. The prosecution of a protected person's claims, including claims for personal injury, is the duty of a conservator. See ORS...