PRACTICE AND PROCEDURE — persons under legal incapacity — cross-claim challenging validity of enduring power of attorney where principal purportedly lacked capacity at the time of execution — unrepresented litigant as cross-defendant — medical report in evidence — whether principal proceedings commenced in name of person lacking capacity and cross-claim to the extent brought against that person should be stayed pending appointment of tutor — proceedings stayed pending appointment of tutor — proceedings against other cross-defendants continuing
Quick Take
1Where medical evidence establishes that a party lacks capacity to execute a power of attorney due to dementia and cognitive impairment, the same conclusions as to incapacity will ordinarily extend to the capacity to conduct litigation, engaging UCPR r 7.14.
2Where proceedings have been commenced in the name of a person who lacks capacity and no tutor has been appointed under UCPR r 7.18, the appropriate course is to stay the proceedings rather than dismiss them, preserving the ability for a tutor to be appointed and the proceedings to resume.
3A cross-claim against a person lacking capacity must also be stayed pending appointment of a tutor, but the cross-claim may continue against other properly constituted cross-defendants.
