A lawsuit is going to be filed on behalf of a minor or incompetent individual, or against a minor or incompetent individual. What do you do? In the State of Michigan, there are specific rules designed around what happens if the plaintiff in an action needs protection in the form of a fiduciary, whether it’s a conservator to the probate court or a next friend through the circuit court. Let’s address what you do in these situations.
When the defendant is a minor or incompetent individual
If the lawsuit is filed and it’s been determined that the person is incompetent or a minor, you can still follow through with the lawsuit. If the individual has a guardian or conservator, the defendant in that action would be the guardian or conservator’s estate that had been created through the probate court. If it doesn’t exist, can personal jurisdiction be established by serving them? Yes, but MCR 2.201 lays out the rule for the protection of the incompetent individual, so that the person has the appropriate fiduciary in place through a next friend or guardian ad litem to ensure they can handle the defense of the lawsuit.
When the plaintiff is a minor or incompetent individual
The statute does not allow a minor to file a lawsuit. The court will mandate that there is a fiduciary in place. This occurs one of two ways. It either happens in the circuit court with a next friend, or through the probate court with a conservatorship estate. A conservatorship estate is done by filing a petition for conservatorship to the probate court in which the plaintiff resides. The probate court adjudicates the fact that there’s a need for a conservator often because of a lawsuit, and that conservatorship becomes the plaintiff. Under statute, they now have standing to file the lawsuit in the circuit or trial court. Should that not be the desired option, MCR 2.201 has a section which allows a next friend to be appointed.
Darren Findling talks more about when to use a conservator or next friend.
If you have more questions on a next friend or conservatorships, call The Probate Pro today at (833)-PROBATE.