Guardianship

A litigation guardian is a person who acts on behalf of a party who is unable to conduct their own litigation due to mental or physical disability.

What is a litigation guardian?

A litigation guardian is a person who acts on behalf of a party who is unable to conduct their own litigation due to mental or physical disability.

A litigation guardian stands in the place of the party, and makes decisions on their behalf about the conduct of the proceedings.

A person who is authorised by law to conduct legal proceedings for a person who needs a litigation guardian is also known as ‘a manager of the affairs of a party’. This can include a guardian who is appointed under state legislation in the absence of a suitable individual who is already close to the party.

A litigation guardian must comply with all the obligations that the party would normally be subject to under the Family Law Rules. They may do anything for the benefit of the party that the party would be ordinarily allowed to do in the proceedings.

When is a litigation guardian needed?

A person may need a litigation guardian if they are not able to understand the nature and possible consequences of the proceedings. A guardian may also be required if the individual is not capable of adequately conducting, or giving adequate instructions for the conduct of the proceedings.

In order to be able to conduct their own litigation, a person must be able to understand the following:

  • that they are making a claim for an order from a court;
  • the order they are seeking, and the grounds on which they are seeking the order;
  • that before the Court can make an order, it must be satisfied of the existence of certain facts, and that the Court can only be so satisfied if, there is placed before the Court, admissible evidence the Court is satisfied proves such facts;
  • where the claim is likely to be defended, the grounds on which the claim is to be defended;
  • if it is proposed that they will be legally represented, that they will incur expenses in retaining legal representation, and the amount that is likely to be charged;
  • that they may not succeed in obtaining the order they seek; and
  • where the claim is likely to be contested, that there is a risk the Court will not grant the orders they claim and they may be ordered to pay the opponent’s costs.

The Court will always start with the presumption that an adult does not need a litigation guardian, unless there is evidence that proves otherwise. The way that the Court decides whether a person requires a litigation guardian will vary from case to case. The Court will often (but not always) need medical evidence to decide whether or not a litigation guardian is required.

Who can be a litigation guardian?

A person may be a litigation guardian if they:

  • are an adult over the age of 18;
  • have no interest in the proceedings which are adverse to those of the person requiring a litigation guardian; and
  • can fairly and competently conduct the proceedings on behalf of the person in need of a litigation guardian.

If you have any questions about litigation guardians, please contact us to book an appointment with one of our family lawyers.

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