Litigation Guardians and Family Law
Updated on Oct 13, 2022 • 3 min read • 385 views • Copy Link
Litigation Guardians and Family Law
When a party to litigation does not have the capacity to instruct their own lawyer, because they are below the age of 18 or because they are mentally impaired, a litigation guardian is appointed by the court to give instructions on that party’s behalf. Litigation guardians step into the shoes of the party who lacks capacity and give instruction based on their assessment of the party’s best interests.
Who can be a litigation guardian?
A litigation guardian must:
- Be an adult;
- Have no interest in the case that is adverse to the interest of the person needing the litigation guardian;
- Be able to fairly and competently conduct the case;
- Consent to being a litigation guardian (Federal Circuit and Family Court (Family Law) Rule 3.14)
In practice, litigation guardians are often family members, friends or carers. If none of these people is available the court may appoint a person who does not personally know the person requiring a litigation guardian. The appointed person is then required to familiarise themselves with the person’s circumstances and provide instructions with their best interests in mind.
Who needs a litigation guardian?
A person requires a litigation guardian if they do not understand the nature of the proceeding or are not capable of conducting, or giving instructions, for the conduct of the proceeding. A minor is presumed to need a litigation guardian unless the court orders otherwise (Rule 3.12).
Appointment of litigation guardians
A person may apply to be appointed a litigation guardian. If no suitable person is available to be appointed, the court may request the Attorney-General to nominate a litigation guardian. The court may also appoint a litigation guardian of its own motion. It may also remove or substitute a litigation guardian.
Once a litigation guardian has been appointed, they must give written notice of their appointment to all the other parties to the proceedings.
Duties of a litigation guardian
Once a person has been appointed as a litigation guardian or case guardian, the person is bound by the court rules and must do everything required to be done by the party. They may also do anything which the party may do for the benefit of the party.
The litigation guardian must obtain proper legal advice and carefully consider any proposed resolution of the matter. This may include participating in alternative dispute resolution.
The court may order that the costs of the litigation guardian be paid by a party or from the income or property of the person for whom the litigation guardian is appointed.
Documents that are required to be served on a party who has a litigation guardian must be served on the person’s litigation guardian or, if no litigation guardian has been appointed, on a person who is eligible to be the person’s litigation guardian under the court rules. If there is no one who fulfils either of those criteria, on an adult who has the care of the person, including a person in charge of a hospital or nursing home that has the care of the person.
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