Can a person who is deemed incompetent and has a guardian of the person file in small claims court or must the guardian file?

Asked about 2 years ago - Cincinnati, OH

The guardian filed a small claim and had the ward sign rather than the guardian for the ward. Is that appropriate?

Attorney answers (1)

  1. C L Huddleston III

    Pro

    Contributor Level 16

    Answered . The adjudicated incompetent cannot initiate legal proceedings in his own name, but the rules of civil procedure allow for liberal amendment of pleadings to correct mistakes, and I can't imagine any small claims magistrate would deny amendment of the complaint, permitting the guardian to sign. It is a technicality, and the defendant, who would have notice of the allegations, would not be prejudiced. If the case were dismissed, it would take only a matter of minutes to re-file the complaint with the proper signature.

    If you are the defendant, you may be able to use this to create delay, but it will not result in a final disposition of the claim in your favor.

    Mr. Huddleston is an Ohio-Certified Specialist in Estate Planning, Trust & Probate Law, with offices in Columbus... more

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