Short answer. The guardian or guardian ad litem may, with prior court approval, do on the minor's or incompetent person's behalf anything respecting the partition that the ward could have done in partition proceedings if of age or competent. Approval must be secured first for each act, and the guardian's authority never exceeds the ward's own capacity in that same case.
What the law says
The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent.
Rule 69, Section 9 — Power of guardian in such proceedings. Read the full provision →
Filling in for an incapacitated co-owner
A co-owner who is a minor, or who has been judicially declared incompetent, cannot personally participate in the partition proceedings in the way a capacitated adult owner could. The rule addresses this by authorizing that person's guardian or guardian ad litem to step in on their behalf. Without this substitution, a partition involving a minor or incompetent co-owner would stall, since that co-owner has no independent legal capacity to file pleadings, negotiate a division, or agree to a report on their own behalf, leaving the whole case without a way to move forward for that share.
Court approval comes first
The guardian's authority to act is conditioned on obtaining the approval of the court first — the guardian cannot simply proceed to do, perform, or agree to anything respecting the partition without securing that prior judicial approval for the specific act. This requirement functions as a built-in check, since a guardian's interests do not always align perfectly with the ward's, and the court is left to confirm that each proposed step actually serves the ward's benefit before it is taken, rather than trusting the guardian's judgment alone.
The scope is tied to what the ward could have done
Once approved, the guardian may do and perform on the ward's behalf any act, matter, or thing respecting the partition of the real estate that the minor or incompetent person could have done in the proceedings had they been of age or competent — the guardian's power mirrors the ward's own hypothetical capacity, no broader. The guardian cannot use the partition proceeding to grant the ward rights they would not otherwise have had, or to waive rights the ward could not have waived personally, even with the court's approval.
Related provisions
- Rule 69, Section 9 — Power of guardian in such proceedings
- Rule 69, Section 1 — Complaint in action for partition of real estate
- Rule 69, Section 4 — Oath and duties of commissioners