It doesn’t come up often, but when it does, it’s a problem.

If, through the course of litigation, you come to believe that a self-represented opposing party is incompetent, there is a fairly simple procedure outlined in the Wisconsin statutes to both protect the party’s interest and keep the case moving.

Wis. Stat. section 803.01(3)(a) is mostly used for minors, but it applies to potentially incompetent parties as well. It reads, in part:

If a party to an action or proceeding is … alleged to be incompetent, the party shall appear by an attorney … or by a guardian ad litem who may appear by an attorney. A guardian ad litem shall be appointed in all cases in which the … individual alleged to be incompetent has no guardian of the estate” (emphasis added).

Reading further, if the individual already has an attorney of record in the case, “the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem.”

Notice Procedure

There is a slightly different notice procedure to appoint a guardian ad litem for a plaintiff versus a defendant, outlined in Wis. Stat. section 803.01(3)(b)(2) and (3). But if the application is made by an adverse party, after filing a motion or petition stating the facts showing the need and authority for the appointment of a guardian ad litem, a hearing on the motion “shall be on notice.”¹

Reading the subparts together, it appears as if the court has discretion to direct or approve the type and timeframe of the notice.² All things being equal, a good argument can be made for mail notice under a typical five-day timeframe.

Prior to entry of judgment, if the court believes a party is incompetent and has not been represented as outlined in Wis. Stat. section 803.01(3)(a), “there shall be no further proceedings until a guardian ad litem is appointed.”³

At the hearing, make your arguments as to why you believe the opposing party is incompetent and requires a guardian ad litem. If the court finds that the party is incompetent and has not been represented, it can appoint a guardian ad litem.

If the court determines that the party is competent, you’ve done your due diligence. Either way, the case moves forward.

Why This Matters

If a party is incompetent, agreements and decisions made in the case are open to attack for a much longer time period and easier procedure than under Wis. Stat. section 806.07.

After appointment of a guardian ad litem,

the court shall fix a reasonable time within which the guardian ad litem may move to vacate or strike any order entered or action taken during the period when a guardian ad litem was required; and as to all matters to which objection is not made, the guardian ad litem and the ward shall be bound. Any such motion by a guardian ad litem shall be granted as a matter of right⁴ (emphasis added).

Furthermore, Wis. Stat. section 803.01(c)(2) tells us that, if an incompetent party was not represented in the action or proceeding by an attorney of record or by a guardian ad litem, “the judgment or order shall be vacated on motion of:

• The … individual adjudicated or alleged to be incompetent, for whom no appointment was made, at any time prior to the expiration of one year after the disability is removed; or

• The personal representative of the … individual adjudicated or alleged to be incompetent at any time prior to the expiration of one year after the death of the … individual” (emphasis added.)”

Given the possibility of a direct attack on a judgment for up to a year after a pro se party dies, if there is serious doubt about an opposing party’s competence, the family law practitioner should protect their client by filing a motion and bringing the issue of incompetence before the circuit court at the earliest opportunity.

Payment

Everybody wants to get paid, and guardians ad litem are no exception. In 1982, the Supreme Court dealt with the issue of payment for a guardian ad litem for a minor appointed under Wis. Stat. section 803.01(3) where the minor’s claim was dismissed and there was no recovery for the minor.

In Romasko, et al. v. City of Milwaukee, et al.,⁵ the court held that minors are “the special objects of the solicitude of the court and of government generally” and that appointment of a guardian ad litem in these types of proceedings is “rendered to the system of justice and, more specifically, to the particular court and the county in which an action is venued.”

Where the subject party is indigent and without income or assets, the county in which the case is venued is responsible for the guardian ad litem fees.⁶ Otherwise, it is reasonable to expect that the guardian ad litem fees would be paid out of the marital estate.

A Takeaway

Dealing with a self-represented party is sometimes difficult enough without competency being an issue, and nearly impossible when it is. Take action early in a case to have a guardian ad litem appointed for the party so that the case can move forward and the judgment can be protected from direct attack post-divorce.

This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.

Endnotes

¹ Wis. Stat. §803.01(3)(b)(5).

² See Wis. Stat. §803.01(3)(b)(3) vis a vis Wis. Stat. §803.01(3)(b)(5).

³ Wis. Stat. § 803(3)(c)(1).

⁴ Id.

⁵ Romasko, et al. v. City of Milwaukee, et al., 108 Wis. 2d 32 (1982), at 37.

⁶ Romasko, at 45.