Procedural guardian / Court-appointed representative for an absent party
Modern civil procedure has to reckon with a simple fact: people move around. They change apartments, leave the country, vanish without forwarding addresses. When someone files a lawsuit and can’t locate the defendant, the court faces a dilemma. Let the case die? Or proceed without the missing party? Polish law offers a third option: appoint a procedural guardian—a court-designated representative who stands in for the absent party. This court-appointed representative (sometimes called a guardian ad litem in common-law systems) keeps litigation moving while preserving, at least in theory, the missing party’s right to defense. But the institution raises thorny questions about what it means to defend someone who doesn’t know they’re being defended.
The Threshold Question: When Does Someone Qualify as Missing?
The fundamental requirement for appointing a procedural guardian is that the party seeking the appointment must make a showing—not proof in the full evidentiary sense of Article 243 of the Code of Civil Procedure, but something more than bare assertion. The standard is “probability,” which sits somewhere between proven fact and unsupported claim.
Courts have repeatedly emphasized that it’s not enough for a party to simply declare ignorance of the opponent’s address. Nor is it sufficient to point out that mail sent to a known address went undelivered. Active efforts are required: obtaining documentation from population registries, collecting statements from people who might know the party’s whereabouts, conducting other verification measures.
What counts as adequate showing? Courts accept certificates from civil-registry offices issued for the last known place of registration. Written explanations from family members, roommates, neighbors, or employers of the missing party carry evidentiary weight. Testimony from such individuals is also admissible.
A Supreme Court decision from July 2020 is particularly significant. The court stressed that although making a showing differs from proving, the proper appointment of a procedural guardian is so important to the legality of the entire proceeding that appointment can occur only after exhausting all commonly available search methods. The court must consider both circumstances known to the requesting party and information available to the tribunal itself.
Filing the Motion
A motion to appoint a court-appointed representative for a party whose whereabouts cannot be ascertained follows the general rules for procedural documents, but its specificity demands particular attention. It must contain not just an assertion of ignorance about the party’s whereabouts but, crucially, material making that circumstance probable. Importantly, failure to make this showing doesn’t constitute a formal deficiency under Article 126, Section 2 of the Code of Civil Procedure—it’s a substantive prerequisite, and failing to meet it leads to denial of the motion, not to a summons for correction.
The motion can be formulated directly in the complaint or constitute a separate document. In both cases it retains autonomous character and undergoes independent evaluation. A particularly interesting situation arises when a complaint contains a motion to appoint a guardian but doesn’t specify the defendant’s address. Case law holds that in such circumstances, failure to indicate an address doesn’t create a formal deficiency in the complaint. Priority shifts to evaluating the guardian motion—only its negative resolution justifies summoning the plaintiff to provide an address under penalty of return of the complaint.
It should be noted, however, that denial of the motion to appoint a guardian ad litem doesn’t mean the case automatically proceeds. Nor does it justify suspending proceedings under Article 177, Section 1, Point 6. The proceeding can be suspended only when the party fails to fulfill the obligation to indicate the defendant’s correct address.
Special Regime in Alimony and Paternity Cases
The legislature introduced enhanced procedural guarantees in matters of particular social sensitivity. In cases involving alimony claims and establishing paternity and related demands, the presiding judge is obligated to conduct appropriate inquiry aimed at establishing the defendant’s place of residence or whereabouts before appointing a procedural guardian.
This procedural overlay has significant practical consequences. First, the inquiry can take any form—the court has discretion in choosing methods. Second, doctrine indicates that the requirement to conduct inquiry relieves the petitioner of the obligation to make the unknowability of whereabouts probable—simple assertion suffices. Establishing residence becomes the court’s task, not the party’s.
An analogous inquiry obligation also applies to non-litigious proceedings, where—unlike in litigation—the court-appointed representative is designated ex officio (Article 510, Section 2). This means the presiding judge should take appropriate steps on his own initiative to establish the interested party’s whereabouts before appointing a guardian ad litem.
Public Notice: Information Function and Effectiveness Condition
Article 144, Section 2 imposes on the presiding judge the obligation to publicly announce the guardian’s appointment. The announcement occurs in the court building and at the office of the mayor (or equivalent) competent for the absent person’s last place of residence or stay, or alternatively competent by virtue of the court’s seat. In matters of greater significance, the presiding judge may additionally order announcement in the press.
Public notice serves a crucial function—it constitutes an indispensable condition for effective service of any documents on the procedural guardian in the proceeding. The aim is maximum dissemination of information about the pending case, so that word might reach—directly or indirectly—the party whose whereabouts are unknown.
Assessing whether a case deserves the designation “of greater significance” and requires press announcement belongs to the presiding judge’s discretionary authority. The evaluation considers the value of the matter in dispute, the weight of non-pecuniary claims, the social importance of the case (divorce, annulment of marriage, for instance), and the matter’s significance to either party.
According to the law on the Court and Commercial Gazette, the announcement should appear in that publication, which doesn’t preclude publication in other periodicals as well. Importantly, the announcement occurs once—when appointing the procedural guardian. In case of later change in the guardian’s person, renewed public notice isn’t necessary, since the informational purpose was already achieved by the first announcement.
Service on the Guardian: Rules and Practice
From the moment a court-appointed representative is appointed for a party whose location is unknown, all service can be accomplished only to the guardian. Article 143 provides that service may occur only into the guardian’s hands, but doctrine and case law agree that this formulation doesn’t preclude substitute-service institutions.
In practice this means service can occur directly to the procedural guardian, but also into the hands of an adult household member, and in case of absence—to building management, a caretaker, or village administrator (Article 138). Service by leaving the delivery at the post office is also permissible (Article 139).
The procedural guardian is obligated to inform the court of any change in residence address. The court should instruct the guardian about this obligation at first service (Article 136). The consequence of neglecting this obligation is leaving uncollected documents in the case file with the effect of service.
Article 144, Section 3 provides that service becomes effective when the document is served on the guardian ad litem. The court may, however, condition effectiveness of service on expiration of a specified period from the moment of posting notice in the court building. Importantly, the temporal condition can relate only to announcement in the court building—the date of announcement at the mayor’s office or in the press is irrelevant.
Verifying Appointment Grounds and Effects of Irregularity
The court can’t limit itself to one-time evaluation of the guardian’s appointment validity at the moment of filing the motion. At every stage of proceedings the tribunal is obligated to continuously verify the current status of prerequisites justifying the court-appointed representative’s functioning. If doubts arise, the court should take appropriate measures ex officio. Analogous obligations rest on the guardian—if learning of the represented person’s whereabouts, there’s an obligation to notify the court.
Conducting proceedings with participation of a procedural guardian appointed in violation of Article 144 constitutes a special case of depriving a party of the ability to act and defend rights. The result is invalidity of the proceedings. Invalidity can be discussed especially when the guardian’s appointment occurred despite lack of adequate showing of unknowability of the party’s whereabouts.
If it’s determined that a procedural guardian isn’t fulfilling obligations—not responding to correspondence, not undertaking appropriate procedural acts, not reporting address changes—changing the guardian’s person by the court may prove expedient. Importantly, no appeal lies from the decision to appoint a guardian ad litem or refuse appointment, regardless of the decision’s form (order or directive). It is possible, however, to challenge the determination within an appeal against an order suspending proceedings (Article 177, Section 1, Point 6) or within appeal from the trial court’s judgment (Article 380).
Expanded Authority of the Court Referendary
The legislature in Article 144, Section 4 granted the court referendary authority to perform acts specified in Sections 1-3 of that provision. This means the referendary may issue a directive regarding the appointment of a court-appointed representative, conduct appropriate inquiry in alimony and paternity cases, order public announcement of the guardian’s appointment, and condition service effectiveness on expiration of a specified period from the moment of posting notice.
This solution fits into the broader trend of rationalizing civil procedure by relieving judges of administrative-organizational tasks. The court referendary, being a professional familiar with procedure, can efficiently accomplish these tasks, allowing judges to concentrate on adjudication.
Conclusions and Final Reflections
The institution of procedural guardian for a party whose whereabouts cannot be ascertained constitutes a necessary element of the civil-procedure system, enabling realization of the right to court access even when the party’s current whereabouts can’t be established. Its practical functioning, however, requires maintaining a balance between two values: efficiency of proceedings and protection of the absent party’s rights.
On one hand, excessive liberality in appointing guardians ad litem would risk depriving parties of the ability to defend their rights—a court-appointed representative, though acting in good faith, doesn’t possess the same knowledge about the case and motivation to act as the interested person herself. On the other hand, an overly restrictive approach to prerequisites for appointing a procedural guardian could lead to blocking proceedings in situations where a party deliberately hides from the administration of justice.
Supreme Court case law consistently indicates the proper path: it requires the requesting party to exhaust reasonably available search methods, not limiting itself to formal declaration of lack of knowledge about whereabouts. Simultaneously, courts are obligated to continuously verify the validity of the guardian’s functioning during proceedings, which constitutes an additional procedural guarantee.
Founder and Managing Partner of Skarbiec Law Firm, recognized by Dziennik Gazeta Prawna as one of the best tax advisory firms in Poland (2023, 2024). Legal advisor with 19 years of experience, serving Forbes-listed entrepreneurs and innovative start-ups. One of the most frequently quoted experts on commercial and tax law in the Polish media, regularly publishing in Rzeczpospolita, Gazeta Wyborcza, and Dziennik Gazeta Prawna. Author of the publication “AI Decoding Satoshi Nakamoto. Artificial Intelligence on the Trail of Bitcoin’s Creator” and co-author of the award-winning book “Bezpieczeństwo współczesnej firmy” (Security of a Modern Company). LinkedIn profile: 18 500 followers, 4 million views per year. Awards: 4-time winner of the European Medal, Golden Statuette of the Polish Business Leader, title of “International Tax Planning Law Firm of the Year in Poland.” He specializes in strategic legal consulting, tax planning, and crisis management for business.
