In most litigation situations the client controls the proceeding while receiving advice and recommendations through the client’s lawyer.

When a client is incapable of providing instructions another party, the litigation guardian, becomes involved in the process.

A person unable to instruct their lawyer is described as a party under a disability and is generally either a minor, someone under the age of 18, is mentally incapable and therefore unable to assess the legal consequences of their decisions for is an absentee or a person having lived in Ontario who has disappeared.

The law allows for the appointment of the litigation guardian who may be an existing guardian who will then act as a litigation guardian or an attorney under a power of attorney.

In the event that there are no persons with the authority described above any person may act as a litigation guardian after swearing an affidavit attesting to a number of issues relating to the person’s disability and confirming the proposed litigation guardian’s consent to be appointed.

In the event that there are no persons available to act as litigation guardian the Children’s Lawyer or the Public Guardian and Trustee may be appointed to act as the litigation guardian.

Once appointed a litigation guardian is authorized to do anything that a party in a proceeding is required or authorized to do.

The litigation guardian must take all steps necessary to protect the incapable person’s interest.

The litigation guardians must ensure that the incapable person is represented by a lawyer.

Written by Barrie Hayes