Lacking Capacity – The Necessity for a Litigation Guardian
Do you know a family member or friend who lacks the capacity to make decisions for themselves? In family law proceedings, the concept of lacking capacity and the appointment of a litigation guardian is crucial for ensuring that individuals who cannot manage their own legal affairs are adequately represented.
A litigation guardian is appointed to act on behalf of a person who lacks capacity. A litigation guardian is responsible for making decisions in the best interests of the person they represent, including instructing lawyers and making strategic decisions about the case. The litigation guardian essentially steps into the shoes of the person lacking capacity, ensuring their rights and interests are protected throughout the legal process.
A person may lack capacity due to various reasons, including age, mental incapacity, or physical disability. A person needs a litigation guardian in family law proceedings if the person:
1. does not understand the nature and possible consequences of the proceeding; or
2. is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
A person may apply for the appointment of a litigation guardian for a party. The process involves the filing of an Application in a Proceeding along with an affidavit that supports the need for a litigation guardian. An affidavit of the proposed litigation guardian must be filed indicating their willingness and ability to act in the best interests of the person they will represent. The Court will then review the application and, if satisfied, issue an Order appointing the litigation guardian.
To be appointed as a litigation guardian, a person must:
1. be an adult;
2. have no conflicting interests with the person needing the litigation guardian; and
3. be capable of fairly and competently conducting the proceedings for the person needing the litigation guardian.
In some cases, a person authorised by law to manage the affairs of the person needing a litigation guardian may automatically assume this role by filing the necessary affidavit.
If no suitable person is available to be a litigation guardian for a person, the Court may request the Attorney-General appoint a manager of the affairs of the party, who can then act as a litigation guardian.
Once appointed, the litigation guardian must act in the best interests of the person they represent. They are responsible for all decisions related to the legal proceedings. Being a person’s litigation guardian is a significant obligation. It is therefore important that a person be aware of their duties and responsibilities before becoming a person’s litigation guardian.
Conclusion
The appointment of a litigation guardian is a vital mechanism in family law to ensure that individuals who lack capacity are not disadvantaged in legal proceedings. It provides a structured approach to safeguarding their interests and ensuring fair representation in Court.
If you have any queries in relation to the above, contact Swan Family Lawyers on 8227 1970 and we will be happy to assist you.