Short answer. Yes. Section 18 of Rule 3 allows the court, on motion with notice, to let the action continue for or against the incompetent or incapacitated person, as long as they are assisted by a legal guardian or a guardian ad litem appointed for the case.
What the law says
If a party becomes incompetent or incapacitated, the court, upon motion with notice, may allow the action to be continued by or against the incompetent or incapacitated person assisted by his legal guardian or guardian ad litem.
Rule 3, Section 18 — Incompetency or incapacity. Read the full provision →
Incapacity mid-case does not stop the litigation
Section 18 addresses a party who becomes incompetent or incapacitated after a case is already underway — as distinct from someone who was already incapacitated when the case began. Rather than treating that development as grounds to halt or dismiss the proceeding, the Rules provide a mechanism for the case to keep moving while protecting the now-incapacitated party's interests through representation. This distinction matters because a party who was already incompetent when a suit was filed is instead handled under separate rules governing capacity to sue at the outset, whereas Section 18 deals specifically with a change in status mid-litigation.
The procedure: motion with notice
The court does not act automatically the moment incapacity arises. Section 18 requires a motion, made with notice, before the court will allow the action to continue with the incapacitated party assisted by a representative. This gives the other parties, and presumably the incapacitated party's family or existing representatives, an opportunity to be heard on the arrangement before the court authorizes the case to proceed on that basis. Notice also lets the court satisfy itself that whoever is proposed as guardian or guardian ad litem is a suitable, trustworthy representative before entrusting that person with the incapacitated party's stake in the case.
Who assists the incapacitated party
The section specifies two possible forms of assistance: the party's legal guardian, if one already exists, or a guardian ad litem — a guardian appointed specifically for purposes of that litigation — if no legal guardian is in place. Either way, the incapacitated party does not simply disappear from the case; someone legally authorized to protect their interests stands in to assist them as the litigation continues. Without this substitution mechanism, a party's sudden incapacity could otherwise force the suspension of a case that might well be ready for resolution, prejudicing the opposing party's own interest in seeing the litigation through to judgment. Section 18 binds the court to allow this arrangement only after a proper motion and notice; it does not authorize the case to simply proceed against an incapacitated party who has no guardian or guardian ad litem in place at all.
Related provisions
- Rule 3, Section 18 — Incompetency or incapacity
- Rule 3, Section 17 — Death or separation of a party who is a public officer
- Rule 3, Section 19 — Transfer of interest