Article

Case Guardians in Family Law

17 April 2015

Family law proceedings are not only for the young and healthy. In some cases, the stresses of separation and litigation may even cause depression and severe anxiety. Issues of age, drug or alcohol abuse, mental illness or disability may be present which make it questionable whether someone has the legal capacity to make the necessary decisions. The Family Court has procedures in place to protect the interests of those who are not capable of adequately conducting their case or giving their lawyers proper instructions. Lawyers also have an obligation to raise the issue of legal capacity if they suspect that their own client or another party to the litigation does not understand the nature or possible consequences of the case.

If this is your situation, a case guardian may be appointed to manage your litigation for you. An application for a case guardian may be made by either one of the parties, by the proposed case guardian, or in rare cases the court may make the application itself. A case guardian will often be a relative or friend of the party who needs assistance. It should be someone who enjoys their trust and confidence. Even if a party lacks capacity to conduct the litigation, they may still have sufficient capacity to nominate their choice of guardian. If the party lacking capacity has already appointed someone to manage their affairs, such as a power of attorney, it is a good idea for that person to take on the role of case guardian unless they are also required to act as a significant witness about issues in dispute.

The application to appoint a case guardian is usually supported by an affidavit setting out:

1. evidence of the party’s mental or physical disability and lack of necessary understanding and capacity;

2. proof that the person who is proposing to act as case guardian:

is an adult,
can conduct the case for them fairly and competently,
consents to the appointment; and

3. details of how the case guardian’s costs and expenses incurred in managing the case will be met.

The court takes the appointment of a case guardian very seriously, stating “to relieve an adult person of the right to conduct his or her own litigation is a serious step and a serious deprivation of a fundamental right. It also requires the rebuttal of the presumption of competence.” This means that the court starts out by assuming that adults are capable of looking after their own interests and have the right to do so. The person seeking to have a case guardian appointed will need to provide strong medical evidence to support their claim that it is necessary.

What if the situation has changed and you wish to have a case guardian removed? This is a matter for the court’s discretion. That means it is up to the judge to decide whether to revoke the appointment – even if the case guardian wishes to retire. In making this decision the court will take into account the stage of the litigation, the reasons for the request and whether discharging the case guardian will create unacceptable costs or delays.

A case guardian generally has the right to be indemnified by the person with the disability or their estate for costs actually incurred. In some circumstances, however, the case guardian may need to take the risk of funding the litigation costs themselves. This may occur if the case is lost and the party with a disability has insufficient assets to repay them.