Next friend
Encyclopedia
In common law
, next friend (Law French
prochein ami) is a phrase used to refer to a person who represents another person who is under disability or otherwise unable to maintain a suit on their own behalf and who does not have a legal guardian
.
This disability often arises from minority, mental incapacity, or lack of access to counsel, consequently every application to the court on behalf of a minor or a lunatic or a person detained without access to an attorney, who does not have a legal guardian or someone authorized to act on their behalf with a power of attorney, must be made through a next friend (prochein amie, proximus amicus).
Prior to the Married Women's Property Act 1882
in British law (and similar acts in the same time period in American law) it was also usual for a married woman to sue by a next friend, but that act, allowing a married woman to sue in all respects as a feme sole, has rendered a next friend unnecessary in the case of married women.
When a relative who is next of kin acts as a next friend for a person, that person is sometimes instead referred to as the natural guardian of the person.
Historically, in the case of a minor, the father is prima facie
the proper person to act as next friend; in the father's absence the testamentary guardian if any; but any person not under disability may act as next friend so long as he has no interest in the action adverse to that of the minor. A married woman could not historically act as next friend, but this practice is no longer current, at least in the United States. A minor frequently defends a suit, not by a next friend, but by a guardian ad litem
often appointed by the court with jurisdiction over the case or a court with probate jurisdiction.
In the case of mental incapacity, a conservator, guardian, or committee, but if they have no such representative, or if the committee has some interest adverse to the claimant, they may sue by a next friend.
A next friend has full power over the proceedings in the action as if he were an ordinary plaintiff
, until such time as a guardian or guardian ad litem is appointed in the case, but is only entitled to present evidence on the same basis as any other witness.
One notable use of next friend status was in connection with many suits brought by detainees at Guantanamo Bay prior to the enactment of the Military Commissions Act of 2006
.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, next friend (Law French
Law French
Law French is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, beginning with the Norman Conquest by William the Conqueror...
prochein ami) is a phrase used to refer to a person who represents another person who is under disability or otherwise unable to maintain a suit on their own behalf and who does not have a legal guardian
Legal guardian
A legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
.
This disability often arises from minority, mental incapacity, or lack of access to counsel, consequently every application to the court on behalf of a minor or a lunatic or a person detained without access to an attorney, who does not have a legal guardian or someone authorized to act on their behalf with a power of attorney, must be made through a next friend (prochein amie, proximus amicus).
Prior to the Married Women's Property Act 1882
Married Women's Property Act 1882
The Married Women's Property Act 1882 was an Act of the Parliament of the United Kingdom that significantly altered English law regarding the property rights granted to married women, allowing them to own and control their own property....
in British law (and similar acts in the same time period in American law) it was also usual for a married woman to sue by a next friend, but that act, allowing a married woman to sue in all respects as a feme sole, has rendered a next friend unnecessary in the case of married women.
When a relative who is next of kin acts as a next friend for a person, that person is sometimes instead referred to as the natural guardian of the person.
Historically, in the case of a minor, the father is prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
the proper person to act as next friend; in the father's absence the testamentary guardian if any; but any person not under disability may act as next friend so long as he has no interest in the action adverse to that of the minor. A married woman could not historically act as next friend, but this practice is no longer current, at least in the United States. A minor frequently defends a suit, not by a next friend, but by a guardian ad litem
Ad litem
Ad litem is a term used in law to refer to a party appointed by a court to act in a lawsuit on behalf of another party—for instance, a child or an incapacitated adult—who is deemed incapable of representing him or herself...
often appointed by the court with jurisdiction over the case or a court with probate jurisdiction.
In the case of mental incapacity, a conservator, guardian, or committee, but if they have no such representative, or if the committee has some interest adverse to the claimant, they may sue by a next friend.
A next friend has full power over the proceedings in the action as if he were an ordinary plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
, until such time as a guardian or guardian ad litem is appointed in the case, but is only entitled to present evidence on the same basis as any other witness.
One notable use of next friend status was in connection with many suits brought by detainees at Guantanamo Bay prior to the enactment of the Military Commissions Act of 2006
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
.