Rule 17.Parties Plaintiff and Defendant: Capacity

Rule 17 has two subsections and both matter in the Probate and Family Court.

Real party in interest

Subsection (a) is identical to its civil counterpart, with one carve-out at the front: except for any action brought under General Laws chapter 152 § 15, every action is prosecuted in the name of the real party in interest. A list of fiduciaries and others may sue in their own names without joining the person they act for: an executor, administrator, guardian, conservator, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for another's benefit, or a party authorized by statute. Where a statute so provides, an action for another's use or benefit is brought in the name of the Commonwealth. An insurer that has paid all or part of a loss may sue in the name of the assured to whose rights it is subrogated.

The closing sentence is the practical one: no action shall be dismissed on real-party grounds until a reasonable time has been allowed after objection for ratification, joinder or substitution — and any of those has the same effect as if the action had been commenced in the real party's name.

Minors and incapacitated persons

Subsection (b) was amended in 2009 to work with the Massachusetts Uniform Probate Code, and it repeats the phrase "an incapacitated person as defined in G.L. c.190B" at every turn rather than defining it once.

Where an infant, incompetent person or incapacitated person has a representative — a guardian, conservator or other like fiduciary — the representative may sue or defend on that person's behalf. Where there is no duly appointed representative, the person may sue by a next friend or by a guardian ad litem. The court may appoint a guardian ad litem for such a person not otherwise represented, or may make such other order as it deems proper for the protection of that person — which is broader than appointment and is the source of a good deal of practice.