One of the most common misconceptions about hiring a lawyer is that he or she will be solely responsible for making all of the decisions about your case both before and during any litigation.
It is true that your lawyer is legally and ethically obligated to provide the best possible legal advice and act in your best interest but provided you are making sound decisions based on the information he or she provides, your lawyer must also follow your instructions.
But what happens if you aren’t capable of telling your lawyer what to do? If you’re incapable of doing so because you’re under 18 years of age or disabled, the court will appoint someone called a litigation guardian to act on your behalf. In other words, this is someone who will effectively ‘step into your shoes’ to assess your best interests and instruct your lawyer accordingly.
To be selected as a litigation guardian, someone must:
- be an adult;
- demonstrate that he or she does not have any interest in the case that is opposed or potentially harmful to the interest of the person in need of his or her services;
- be able to act fairly and competently;
- consent to being a litigation guardian under applicable laws.
In some cases, relatives or other concerned parties will ask a lawyer to act as a litigation guardian. This is because a knowledgeable, experienced lawyer can act with a certain degree of objectivity and professionalism.
More often than not, the litigation guardian is a relative, friend or caregiver. Barring that, the court may select someone who does not personally know the person requiring a litigation guardian. In either case, the person chosen to fill this role must become familiar with the person’s situation and issue instructions that reflect their charge’s best interests.
Litigation guardians are generally appointed in the following types of cases:
- Personal injury;
- a criminal compensation application;
- various matters related to Wills;
- family provision applications.
A litigation guardian must be selected to represent someone in any Federal Circuit Court matter in which that party is incapable of understanding the proceeding or its potential consequences; or is incapable of fulfilling his or her legal obligations. Applicable court rules dictate that a minor must have a litigation guardian unless the court orders otherwise.
In accordance with Family Law Rules, a litigation guardian in the Family Court is known as a ‘case guardian’. In any Family Court matter a person who is legally classified as a child or is otherwise incapable of instructing his or her attorney, and/or fulfilling his or her legal obligations, must have a case guardian in order to initiate, continue, respond to, or intervene in proceedings. The only exception to this rule is if the court finds that the child not only comprehends the nature and possible consequences of the case, but can also make certain decisions and meet his or her legal obligations.
There are several methods for appointment. Someone can simply apply to be appointed a litigation guardian or case guardian. In certain circumstances, the court may ask the Attorney-General to nominate a litigation guardian or case guardian. The court may also make its own motion for appointment of a litigation guardian. It may also remove or replace a litigation guardian.
Once the appointment is finalised, the litigation or case guardian must advise all other relevant parties about it in writing.
A newly-selected litigation guardian or case guardian must also abide by applicable court rules. Furthermore, he or she must do everything ordinarily required of a party to the litigation. Finally, he or she may also do anything that the party to the litigation would ordinarily do for his or her own benefit.
As we have already noted, a litigation guardian must obtain proper legal advice. In this context, he or she must duly consider any proposals for resolution of the case, such as participation in alternative dispute resolution.
In accordance with a relevant court order, any costs incurred by the litigation guardian are paid by a party to the litigation or from the income or property of the person that he or she represents.