What is a Litigation guardian?
Persons who are under 18 years of age or are affected by a disability or illness that renders them incapable cannot start or continue a lawsuit by themselves. They need someone to represent their interests in the lawsuit and before Court. The person designated to make those decisions is called a Litigation Guardian.
Persons under 18 years old and incapable persons must be represented by a lawyer in any legal proceeding. They cannot represent themselves. The litigation guardian cannot also be the lawyer of the person under disability.
A Litigation Guardian can be required after a lawsuit was commenced. For example, a person may have been capable when they hired a lawyer and started the lawsuit, but later that same person becomes disabled by reason of dementia. A Litigation Guardian will then need to be appointed to represent the interest of the incapable person for the remainder of the litigation.
The opposite is also true: a Litigation Guardian can become unnecessary during the litigation process. For example, if a person was 16 years old when the lawsuit was started, they will no longer need a Litigation Guardian after they turn 18 years old.
|Incapable person vs. person under disability
The term “incapable person” comes from the Substitute Decision Act, where an incapable person is defined as someone who is not able to understand the information necessary to make a decision about their property (s.6) or their personal care (s.45), or the consequences of their decisions, or lack of decision.
What are the criteria to become a Litigation Guardian?
A Litigation Guardian must be a capable person who is 18 years old or older and whose interests do not conflict with the interests of the incapable or minor person.
As legal guardians of their children, parents have the authority to be Litigation Guardian and represent them in a lawsuit. However, it does not have to be a parent.
For persons who are 18 years old or older and who are incapable, the Litigation Guardian must file an affidavit with the court, stating that they are able and willing to represent the person, that they don’t have interests that are adverse to those of the incapable person and that they understand that they may have to pay costs that would be ordered against them by the Court.
What does the role entail?
The most important duty of the Litigation Guardian is to make the decisions that are in the best interest of the person under disability.
In the litigation context, the Litigation Guardian may also be held responsible for paying the cost amounts that are ordered by the Court against the person under disability.
What happens if there is no one willing to act as a Litigation Guardian?
If no one is able or willing to be the Litigation Guardian for the minor or incapable person, then it is the Government of Ontario that will take on this responsibility.
For persons of 18 years and older who have a disability or illness causing them to be incapable, it is the Public Guardian and Trustee of Ontario who will act as Litigation Guardian.
For persons under 18 years of age, it is the Office of the Children’s Lawyer who will act as Litigation Guardian.
If you have any questions about litigation guardians, do not hesitate to contact us to have a free consultation with one of our lawyers. Our firm only represents injury victims. We never represent insurance companies.
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