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Incapacity in Litigation, Mental Examination

When a party is adjudged legally incapacitated, a guardian or conservator typically represents the incapacitated individual’s interests in legal disputes. In certain circumstances, however, a party is for all intents and purposes incapacitated but a guardianship proceeding has never been commenced and there has not been a judgment of incapacity. And because individuals are generally presumed to have capacity, he/she will legally be treated the same as any other litigant, but factually will be unable to partake in the dispute/litigation. 

If such situation arises, then there’s two procedural avenues that are generally available. First, a party may separately petition the relevant probate court to obtain a finding of incapacity so that a guardian or conservator is appointed. This process can be quite lengthy, costly and complicated depending on the particular probate court. Second, under Rule 60.01, a court can order a party to submit to physical, mental or blood examinations by appropriate healthcare providers if the mental condition, physical condition or blood relationship of a party is in controversy. To be “in controversy” under the meaning of Rule 60.01, the condition must be directly involved in some material elements of the cause of action or defense. This requirement, then, limits the availability of a Rule 60.01 motion to issues raised by the parties’ pleadings, whereas a full blown guardianship proceeding is not so limited. 

Contact with questions relating to probate, guardianships, conservatorships or civil litigation generally.