In most legal actions, individuals hire a lawyer in order to gain an understanding of the legal issues involved, and to be informed as to their options, should they choose to proceed by filing a claim. Typically, the client must provide the lawyer with instructions to commence a legal action. Quite simply, although the lawyer is a legal expert, it is the client who is ultimately in control of their case.

However, in those cases in which the party involved in the proceeding is younger than 18 years-of-age or is deemed to be incapable of making decisions and providing informed consent to their lawyer, the court may appoint a litigation guardian. In such instances, the litigation guardian assumes responsibility for representing the minor or person-under-disability by communicating with and providing directions to the lawyer in pursuing the case in question.

When can a litigation guardian be appointed?

A litigation guardian can be appointed to take charge under the following conditions.

• A lawyer cannot legally take directions or approval from any client under the age of 18. Thus, in cases involving a minor, the appointment of a litigation guardian is necessary.
• A grave injury, especially one resulting in brain damage, or the existence of a significant mental disability — one which can be pre-existing or resulting from an accident that is the basis of the lawsuit— can render an individual incapable of making an informed decision.
• A litigation guardian may also be appointed in absentee cases – when the client is either dead or their whereabouts are unknown.

“It is more common to see clients appointing a litigation guardian in personal injury cases as severe accidents can cause injuries such as brain damage, leaving the person unable to take legal decisions and needing special representation.”

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Appointing a litigation guardian

An individual can use a power of attorney to authorize their lawyer to act as their litigation guardian. If an individual already has a legal guardian, the same person can be appointed as litigation guardian. When there is no existing legal guardian and the individual does not want to or is not able to appoint a lawyer for the role under power of attorney, a close family member – who is 18 years-of-age or older – can assume the role of litigation guardian. The appointed person would have to sign and submit an affidavit containing specific information and declarations, including (but not limited to):

• Their consent to act as litigation guardian
• Their relation with the party
• Proof of disability or inability of the party
• Acknowledgement that they are aware of their financial liability

In cases in which there is not a suitable candidate to assume the role of litigation guardian, the Ontario Children’s Lawyer or Public Guardian and Trustee can be appointed to act as litigation guardian on behalf of the party.

Roles and responsibilities of a litigation guardian

Essentially, the litigation guardian’s role is to represent the party by assuming responsibility to do everything necessary to ensure that the individual’s legal interests are properly addressed. The litigation guardian is responsible for making the decisions necessary to protect and promote the individual’s legal action, taking all reasonable and necessary steps to protect the individual’s interests, and assuming responsibility for any financial consequences that may result.

Planning to be a litigation guardian?

If you are considering becoming a litigation guardian for a loved one, here are a few more things about which you should be aware:

• Unless there is a special direction from the court, you can recover the expenditures incurred from the party.

If the claim involving a person under disability in Ontario is settled, it is necessary for a judge to review and approve the settlement reached. This ensures that the amount agreed upon in the settlement is suitable and that the party’s interests are not compromised. This safeguard insures that not only are the individual’s interests being properly scrutinized, but also those of the litigation guardian are also being monitored. This failsafe mechanism should ease your worries about compromising the individual’s rights.