In a Personal Injury action the lawyer explains various legal options to the client, makes recommendations as to how best to proceed and then gets instructions on how to advance the client’s case. The underlying principle is that the client remains in control of their case. If a client is legally incapable of providing instructions to their lawyer and, as a result, incapable of controlling their case, then another person must become involved and assume the role of Litigation Guardian.
If a person is incapable of providing instructions to counsel, they are considered to be a party under a disability. Usually they have one or more of the following characteristics:
- They are mentally incapable of assessing the consequences of their decisions. This may be the result of a traumatic brain injury or a mental illness.
- They are under the age of 18. A minor is legally incapable of giving instructions to a lawyer.
- They are an absentee. This describes a person who has lived in Ontario but then disappeared and it is not known if they are dead or alive.
Who Can Be a Litigation Guardian
If a client is under a legal disability the law provides a way for their case to continue despite the legal disability. The mechanism is the appointment of a Litigation Guardian.
A Litigation Guardian may be:
- an existing legal guardian, who acts as Litigation Guardian; or,
- an attorney under a power of attorney.
If there is no existing guardian, and no attorney under a power of attorney, any person who is not under a disability may be a Litigation Guardian. A close family member usually assumes this role.
A potential Litigation Guardian must swear an affidavit in which they
- consent to act as Litigation Guardian;
- confirm that they have given written authority to a named lawyer to act in the lawsuit;
- provide evidence of the nature and extent of the party’s disability;
- set out their relationship, if any, to the party under disability;
- state that they have no interest in the proceeding adverse to that of the party under disability; and
- acknowledge that they have been informed of their personal liability to pay any costs awarded against them or the person under disability.
If a Litigation Guardian, other than the Children’s Lawyer or the Public Guardian, is appointed, they must be represented by a lawyer.
The Litigation Guardian’s Responsibilities
A Litigation Guardian has responsibilities for conducting the disabled person’s case, as well as possible financial consequences.
The most important responsibility is for the Litigation Guardian to do anything that a party in a proceeding is required or authorized to do. The Litigation Guardian must carefully look after the interests of the person under disability, which involves taking all steps needed for the protection of those interests.
A Litigation Guardian can be removed or substituted by the Children’s Lawyer, the Public Guardian, or another person, if they are not acting in the best interest of the party under a disability.
A Litigation Guardian may be required to personally pay any costs awarded against the party under disability. The Litigation Guardian is then entitled to recover those costs from the person under disability, unless the court orders otherwise.
A Litigation Guardian has active direction of the case brought on behalf of the person with a disability. It is therefore essential to appoint someone with the best interest of the disabled person in mind. From a personal injury lawyer’s perspective it needs to be someone who will work constructively with counsel to move the action to a satisfactory conclusion.