Family law disputes can arise in the lives of people from all walks of life, and all ranges of ability and disability. Sometimes a person who is a party to a family law dispute will be unable to conduct their family law matter because of a mental or physical disability, and in those circumstances, a ‘litigation guardian’ can be appointed to represent that person’s interests.
Simply having a disability or impairment does not mean that person needs a litigation guardian. The Court starts with the presumption that adults do not need litigation guardians, and that children do, and so there must be the evidence put before the Court that proves that is not the case for a particular person. Litigation guardians will only be appointed for adults when their incapacity or disability means they are unable to understand the nature and possible consequences of their proceedings or are not capable of conducting their own matter or giving adequate instructions to their lawyers to conduct the proceedings.
Once the Court had determined that it is appropriate for a litigation guardian to be appointed, the question arises of who will act. A litigation guardian must be an adult who has no interest in the proceedings that are adverse to the interests of the person they will be representing. They must also be capable of fairly and competently conduct the proceedings on that person’s behalf. Litigation guardians are often friends or family members, and where there is no one available, the Attorney General can be asked to appoint an independent person.
Acting as a litigation guardian is an important role, and often a difficult one. The role comes with serious legal obligations, as once appointed, a litigation guardian must comply with all the Court rules and do everything that must be done by a party to the proceedings. This includes engaging in alternate dispute resolution where required and meeting all filing deadlines. In the case of friends or family members, there can be the added layer of difficulty of making decisions that may not be what the person you are representing would like you to do.
If you find yourself in a situation where you require advice about appointing (or being) a litigation guardian, contact us for an initial appointment at (02)62257040 or email info@rmfamilylaw.com.au or get started now online.