Capacity refers to a party’s ability to sue. Minors or the mentally ill must be represented by others in litigation. These parties are often named as “representatives” or as “next friend.” To further protect the interest of children and the mentally infirm, courts may also appoint attorney ad litems or guardian ad litems who are to represent the best interest of the minor child or the disabled party.
Capacity is sometimes used interchangeably with Standing, but that is an incorrect usage. Standing, though, refers to whether a party has some kind of particular injury or right to sue. “Capacity has been defined as a party’s personal right to come into court, and should not be confused with the question of whether a party has an enforceable right or interest.” See 6A WRIGHT, MILLER, & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 1559, at 441
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