The courts and law recognises that infants and a person suffering from a disability need the protection of the legal system.
When a person does not have capacity to conduct litigation, for example is an infant or a person suffering from a disability it, it will be necessary for a litigation Guardian to be appointed to act on the behalf of the infant or person suffering from a disability in the civil litigation. The Litigation Guardian steps in the shoes of the person and is responsible for the conduct of the proceedings.
Who to appoint?
There are many circumstances when it will be necessary for a Litigation Guardian to be appointed to protect the interests of an infant or a person suffering from a disability, for example:
- A personal injuries claim;
- A criminal compensation application;
- A section 18 application for an informal will which might affect the interest of potential beneficiaries;
- A section 21 application for a statutory Will;
- Family Provision Applications;
- Proceedings contesting the validity of the deceased’s last Will and Testament;
- Applications for Construction of a Will;
- Other civil proceedings on behalf of a person
A litigation guardian must always act in the best interest of the person who they represent. The litigation guardian must see that every proper and legitimate step for that person’s representation has been made to ensure that the case is fully put before the courts in all its aspects.
Rule 95 of the Uniform Civil Procedure Rules 1999 (UCPR) provides that unless a person is appointed as litigation guardian by the court, a person become a litigation guardian of a person under a legal incapacity for a proceeding by filing in the court registry the person’s written consent to be litigation guardian of the party in the proceeding.
If the interest of a party who is a person under a legal incapacity requires it, the court may remove a litigation guardian or substitute another person as litigation guardian.
A litigation guardian can only act through a solicitor to protect the interests of the infant or person suffering the disability. This is why in practice; lawyers are often approached by family members who request that the lawyer accept the appointment as litigation guardians for infants or persons suffering from disabilities. A lawyer can bring a level of independence to the role, along with their knowledge of the court processes and area of expertise.
How can Turner Freeman Lawyers help?
If you would like further information on Litigation Guardians or would like to discuss the appointment of a Litigation Guardian, please contact our Wills & Estates Solicitor, Jenna Hutchinson on 13 43 63 to speak with our Wills & Estates experts in Queensland. Our offices are in Brisbane, North Lakes, Logan, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.