(a) Representation by Guardian. Except as otherwise provided by law or R. 4:26-3 (virtual representation), a minor or an adult who has been adjudicated incapacitated pursuant to R. 4:86-1 et seq. shall be represented in an action by the guardian of either the person or the property, appointed in this State. If no such guardian has been appointed, or if a conflict of interest exists between the guardian and the minor or adjudicated incapacitated person, or for other good cause, the minor or adjudicated incapacitated person shall be represented by a guardian ad litem appointed by the court in accordance with paragraph (b) of this rule.
Rule 4:26-2.Minor or Incapacitated Person
Last amended September 1, 2022 · Current through June 18, 2026 · Last verified July 7, 2026
In one sentenceRule 4:26-2 governs how a minor or an adjudicated incapacitated person is represented in an action — by a guardian or a court-appointed guardian ad litem — and sets the appointment methods, including automatic appointment of a parent in negligence actions, and the guardian ad litem's duties.
Full Text of Rule 4:26-2
(b) Appointment of Guardian Ad Litem.
(1) Appointment of Parent in Negligence Actions. In negligence actions, unless the court otherwise directs, a parent of a minor shall be deemed to be appointed guardian ad litem of the child without court order upon the filing of a pleading or certification signed by an attorney stating the parental relationship; the child’s status and age; the parent’s consent to act as guardian ad litem; and the absence of a conflict of interest between parent and child.
(2) Appointment on Petition. The court may appoint a guardian ad litem upon the verified petition of a friend on behalf of a minor or an alleged or adjudicated incapacitated person. In an action in which the fiduciary seeks to have the account settled or has a personal interest in the matter, the petition shall state whether or not the proposed guardian ad litem was nominated by the fiduciary or the fiduciary’s attorney. Each petition shall be accompanied by the sworn consent of the proposed guardian ad litem, stating the proposed guardian ad litem’s relationship to the minor or alleged or adjudicated incapacitated person; certifying that the proposed guardian ad litem either has no interest in the litigation, or setting forth the nature of any such interest; and certifying that the proposed guardian ad litem will perform the duties of guardian ad litem with undivided fidelity if appointed. The court shall appoint the proposed guardian ad litem unless it finds good cause for not doing so. In such case, a new petition seeking the appointment of another proposed guardian ad litem may be filed within 10 days of the rejection. If a new petition is not filed within 10 days or is not granted, the court shall state its reasons for rejecting petitioner’s nominee on the record at the appointment of a guardian ad litem selected by the court. A conflict of interest between the petitioner and the minor or alleged or adjudicated incapacitated person shall be good cause for rejection of the petitioner’s nominee. Only one guardian ad litem shall be appointed for all minors or alleged or adjudicated incapacitated persons unless a conflict of interest exists.
(3) Appointment on Party’s Motion. On motion by a party to a pending action, the court may appoint a guardian ad litem for a minor or alleged or adjudicated incapacitated person.
(4) Appointment on Court’s Motion. The court may appoint a guardian ad litem for a minor or alleged or adjudicated incapacitated person on its own motion.
(5) Service. Notice of a petition or motion for appointment of a guardian ad litem pursuant to subparagraphs (2) through (4) above shall be served on an alleged or adjudicated incapacitated person personally, and on any other parties pursuant to R. 4:4-4(a)(1)(2)(3) or (c) either personally at the time of service of process or thereafter, or by registered or certified mail, return receipt requested. If notice cannot be served as set forth above, the court on ex parte motion may determine the manner of service as it deems appropriate. Notice of a motion for appointment of a guardian ad litem shall be served at least 10 days before the return date.
(c) Duties of Guardian Ad litem.
(1) Guardian Ad litem of Minor or Adjudicated Incapacitated Person. A guardian ad litem of a minor or adjudicated incapacitated person appointed pursuant to subparagraphs (b)(2) through (b)(4) above shall represent the minor or adjudicated incapacitated person in the action pursuant to paragraph (a) above.
(2) Guardian Ad litem of Alleged Incapacitated Person. Except in foreclosure actions subject to subparagraph (c)(3) below, a guardian ad litem of an alleged incapacitated person appointed pursuant to subparagraphs (b)(2) through (b)(4) above shall conduct an independent investigation as to the alleged incapacity as defined in N.J.S.A. 3B:1-2. Following the investigation, the guardian ad litem shall submit a report to the court containing the results of the investigation and recommending whether the best interests of the alleged incapacitated person require the filing of an action for adjudication of incapacity and appointment of a guardian in the Superior Court, Chancery Division, Probate Part in accordance with R. 4:86-1. The guardian ad litem shall not have authority to make decisions on behalf of the alleged incapacitated person. To the extent feasible, the proceedings under this Rule shall be completed in a reasonably timely manner, as specified in a case management order or otherwise by the court.
(3) Guardian Ad litem in Foreclosure Actions.
(A) The court shall limit the duties of a guardian ad litem appointed to represent the interests of a minor or an alleged or adjudicated incapacitated person in a foreclosure action to investigate whether the minor or alleged or adjudicated incapacitated person is entitled to raise an objection as to the right to foreclose or other valid claim or defense.
(B) Following the investigation, the guardian ad litem shall submit a written report containing the results of the investigation. If the report raises no objection as to the right to foreclose or other valid claim or defense, it shall be filed with the Superior Court Clerk in Trenton. If the report raises an objection as to the right to foreclose or other valid claim or defense, it shall be filed with the court that appointed the guardian ad litem.
(C) In matters in which a guardian ad litem is appointed to represent the interests of an alleged incapacitated person, and the report of the guardian ad litem raises an objection as to the right to foreclose or other valid claim or defense, the court shall discharge the guardian ad litem appointed in the foreclosure action and appoint a guardian ad litem pursuant to subparagraph (b)(4) above to perform the duties set forth in subparagraph (c)(2) above.
(d) Action on Recommendation of Guardian Ad Litem of Alleged Incapacitated Person. On receipt of the report of the guardian ad litem pursuant to subparagraph (c)(2) above, the court shall make its own independent fact findings, with or without testimony, and exercise its discretion in determining whether an action for adjudication of incapacity and appointment of a guardian under R. 4:86-1 is required. Any action under R. 4:86-1 shall be filed by an interested party on behalf of the alleged incapacitated person or by the guardian ad litem, and shall be heard in the Superior Court, Chancery Division, Probate Part. Notice of the R. 4:86-1 action shall be provided to the court, which may stay the underlying matter pending adjudication of the action in the Probate Part.
(e) Allowance of Fees. A guardian ad litem appointed pursuant to this rule or R. 4:26-3(c) (failure of virtual representation) who seeks allowance of a fee shall file a written notice with the court. The notice shall be served upon all parties at least 7 days before the hearing. The notice shall state the fee amount sought; that the report and affidavit of services have been filed, unless not required under R. 4:87-7; and that copies [thereof] will be furnished on request.
Amendment History
New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.
Source-R.R. 4:30-2(a)(b)(c), 7:12-6; paragraph (b); amended July 16, 1981 to be effective September 14, 1981; paragraphs (a), (b) and (c); amended July 14, 1992 to be effective September 1, 1992; paragraph (b)(3); amended July 13, 1994 to be effective September 1, 1994; caption; amended, and paragraphs (a), (b)(1), (b)(2), (b)(3), and (b)(4); amended July 12, 2002 to be effective September 3, 2002; new paragraph (d) added July 9, 2008 to be effective September 1, 2008; paragraphs (a) and (b) amended, paragraph (c) amended and renumbered as paragraph (e), paragraph (d) deleted, and new paragraphs (c) and (d) adopted August 5, 2022 to be effective September 1, 2022.
Plain-English Summary
Minors and adjudicated incapacitated persons cannot litigate on their own, so this rule supplies a representative. Such a person is represented by an appointed guardian of the person or property; if none exists, or a conflict of interest exists, the court appoints a guardian ad litem. In negligence actions, a parent is automatically deemed the child’s guardian ad litem, without a court order, on a signed pleading or certification confirming the relationship and the absence of a conflict.
The rule details the other appointment routes — on a friend’s petition, a party’s motion, or the court’s own motion — and the notice each requires. It also fixes the guardian ad litem’s duties, which differ for a minor or adjudicated incapacitated person, an alleged incapacitated person (an independent investigation and report), and a party in a foreclosure action, and it provides for the allowance of the guardian ad litem’s fee.
Frequently Asked Questions
Who represents a minor or incapacitated person in a lawsuit?
An appointed guardian of the person or property, or, if none exists or a conflict arises, a court-appointed guardian ad litem. In negligence actions a parent is automatically deemed the child’s guardian ad litem.
How is a guardian ad litem appointed?
By automatic appointment of a parent in negligence actions, or by the court on a friend’s verified petition, a party’s motion, or the court’s own motion, with notice served as the rule requires.
Source & verification. The rule text and amendment history are reproduced verbatim from the
official New Jersey Rules of Court (N.J. Ct. R. 4:26-2). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. ·
Official source
Also known as: minor or incapacitated personguardian ad litemGALrepresentation of minorguardian appointment