803.01 Parties plaintiff and defendant; capacity.

(1) Real party in interest. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

(2) Representatives. A personal representative, guardian, bailee, or trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party's name without joining the person for whose benefit the action is brought. A partner asserting a partnership claim may sue in the partner's name without joining the other members of the partnership, but the partner shall indicate in the pleading that the claim asserted belongs to the partnership.

(3) Minors or individuals alleged or adjudicated incompetent.

(a) Appearance by guardian or guardian ad litem. If a party to an action or proceeding is a minor, or if a party is adjudicated incompetent or alleged to be incompetent, the party shall appear by an attorney, by the guardian of the estate of the party who may appear by 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 minor or individual alleged to be incompetent has no guardian of the estate, in which the guardian fails to appear and act on behalf of the ward or individual adjudicated incompetent, or in which the interest of the minor or individual adjudicated incompetent is adverse to that of the guardian. Except as provided in s. 807.10, if the guardian does appear and act and the interests of the guardian are not adverse to the minor or individual adjudicated incompetent, a guardian ad litem may not be appointed. Except as provided in s. 879.23 (4), if the interests of the minor or individual alleged to be or adjudicated incompetent are represented by an attorney of record, the court shall, except upon good cause stated in the record, appoint that attorney as the guardian ad litem.

(b) Guardian ad litem.

1. The guardian ad litem shall be appointed by a circuit court of the county where the action is to be commenced or is pending, except that the guardian ad litem shall be appointed by a circuit court commissioner of the county in actions to establish paternity that are before the circuit court commissioner.

2. When the plaintiff is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the plaintiff's application or upon the state's application under s. 767.407 (1) (c); or if the plaintiff is under that age or is adjudicated incompetent or alleged to be incompetent, upon application of the plaintiff's guardian or of a relative or friend or upon application of the state under s. 767.407 (1) (c). If the application is made by a relative, a friend, or the state, notice thereof must first be given to the guardian if the plaintiff has one in this state; if the plaintiff has none, then to the person with whom the minor or individual adjudicated incompetent resides or who has the minor or individual adjudicated incompetent in custody.

3. When the defendant is a minor 14 years of age or over, the guardian ad litem shall be appointed upon the defendant's application made within 20 days after the service of the summons or other original process; if the defendant is under that age or neglects to so apply or is adjudicated incompetent or alleged to be incompetent, then upon the court's own motion or upon the application of any other party or any relative or friend or the defendant's guardian upon such notice of the application as the court directs or approves.

4. If the appointment, for a plaintiff or a defendant, is after the commencement of the action, it shall be upon motion entitled in the action. If the appointment is for a plaintiff and is made before the action is begun, the petition for appointment shall be entitled in the name of the action proposed to be brought by the minor or individual adjudicated incompetent or alleged to be incompetent, and the appointment may be made before the summons is served. Upon the filing of a petition for appointment before summons, the clerk may impose the fee required for the commencement of an action, but in that event no additional commencement fee may be imposed when the summons is filed.

5. The motion or petition under subd. 4. shall state facts showing the need and authority for the appointment. The hearing on the motion or petition under subd. 4., if made by a minor or an individual adjudicated incompetent or alleged to be incompetent for the minor's or individual's guardian ad litem, may be held without notice and the appointment made by order. If the motion or petition is made for a minor or an individual adjudicated incompetent or alleged to be incompetent who is an adverse party, the hearing shall be on notice.

6. If a compromise or a settlement of an action or proceeding to which an unrepresented minor or individual adjudicated incompetent or alleged to be incompetent is a party is proposed, a guardian ad litem shall be appointed, upon petition in a special proceeding, to protect the interest of the minor or individual even though commencement of an action is not proposed. Any compromise or settlement shall be subject to s. 807.10.

(c) Procedure for unrepresented person.

1. If at any time prior to the entry of judgment or final order, the court finds that either a minor, or a person believed by the court to be mentally incompetent to have charge of his or her affairs, has not been represented in the action or proceeding as provided in par. (a), there shall be no further proceedings until a guardian ad litem is appointed. In making such appointment, 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 right.

2. If the court finds after the entry of judgment or final order that a person, who at the time of entry of judgment or final order was a minor or an individual adjudicated or alleged to be incompetent, was not represented in the action or proceeding by an attorney of record or otherwise represented as provided in par. (a) the judgment or order shall be vacated on motion of:

a. The minor or 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

b. The personal representative of the minor or individual adjudicated or alleged to be incompetent at any time prior to the expiration of one year after the death of the minor or individual.

History: Sup. Ct. Order, 67 Wis. 2d 585, 638 (1975); 1975 c. 218; 1977 c. 299, 449; 1981 c. 317; 1993 a. 481; 1997 a. 35; 2001 a. 61, 102; 2005 a. 387; 2005 a. 443 s. 265; 2009 a. 276.

The county in which proceedings are brought must pay the fee of the appointed guardian ad litem. Romasko v. Milwaukee, 108 Wis. 2d 32, 321 N.W.2d 123 (1982).

Sub. (3) (a) requires that, in all cases, a minor who is a party to an action must have a court-appointed general guardian of the property or a guardian ad litem. To be general guardians, parents must to be appointed by the court. The parent's attorney does not represent the minor unless the attorney has also been appointed guardian ad litem or general guardian. Jensen v. McPherson, 2002 WI App 298, 258 Wis. 2d 962, 655 N.W.2d 487, 01-2912.