Who needs a Litigation Guardian?
Unfortunately, serious injuries can happen to anyone, including individuals who would legally be considered to be “parties under a disability”. A “party under a disability” is a person who does not have the legal capacity to instruct legal counsel. This includes infants, children, young adults under the age of 18, as well as individuals who either before their injuries or as a result of their injuries lack the mental capacity to make certain decisions. In personal injury cases, this often includes people who have suffered serious brain injuries and are unable to assess the consequences of their decisions.
What is a Litigation Guardian?
A person under a disability cannot start a legal proceeding, including a lawsuit for personal injury damages unless they are represented by a Litigation Guardian. Most simply a Litigation Guardian is someone over the age of 18 who has the authority to instruct legal counsel. Instructing counsel includes making a wide range of decisions on behalf of the person under a disability for whom the lawsuit is brought, the most important of which is often the ultimate decision of whether to accept a settlement, proceed to trial, or to discontinue a claim. In making these important decisions, the Litigation Guardian is required to act in the best interests of the person under disability.
Who should be a Litigation Guardian?
Most frequently the Litigation Guardian is a family member, such as parent or spouse, of the person under a disability, but this is not a requirement. If the person under a disability already has a legal guardian or an attorney under a power of attorney, then this person should act as the Litigation Guardian. For example, for a child under the age of 18, the litigation guardian is often a parent.
However, if there is no existing legal guardian and no attorney under a power of attorney, then any person who is over the age of 18 and not themselves a under a disability can act as the Litigation Guardian. To be the Litigation Guardian, the person must first swear an Affidavit that states:
- he/she consents to act as the Litigation Guardian in the proceeding;
- he/she confirms that they have given written authority to a named lawyer to act in the proceeding;
- the reasons for the party’s disability (i.e. that the individual is under the age of 18 or nature of the individual’s mental incapacity);
- what the relationship is, if any, between the proposed Litigation Guardian and the person under disability;
- he/she has no interest in the proceeding adverse to that of the person under disability; and
- he/she has been informed of their liability to personally pay any costs awarded against them or against the person under disability.
In the rare circumstance that there is no guardian, attorney, or another person willing to swear the Affidavit, then the Children’s Lawyer or the Public Guardian and Trustee may be appointed to act as Litigation Guardian.
What should I consider if I’m asked to be a Litigation Guardian?
Becoming a Litigation Guardian is a significant responsibility. Under the Rules of Civil Procedure, a Litigation Guardian has the power to do anything that a party is required or authorized to do, and also has a duty to “diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests”. The conduct of a Litigation Guardian is not judged on a standard of perfection, but instead on the standard of what a reasonable person would do. If the Litigation Guardian appears not to be acting in the best interests of the party under a disability, he/she could be removed and replaced.
A significant consideration for a potential Litigation Guardian should be the potential cost consequences. Any person who starts a lawsuit runs the risk that the lawsuit may not result in a settlement or favourable Judgement. In Ontario, an unsuccessful party is often ordered to pay the other party “costs”, which are a portion of the successful party’s legal bill. If the litigation is long, complex, and especially if a full trial is held, legal costs awards can easily be in the tens and sometimes hundreds of thousands of dollars. In a lawsuit involving a party under a disability, it is the Litigation Guardian that would be responsible for paying any adverse costs awards. If you are considering acting as a Litigation Guardian, you should consult with the lawyer bringing the lawsuit about whether ‘costs insurance’ should be obtained, which can protect the Litigation Guardian in the event that the lawsuit is unsuccessful.
As mentioned above, likely the most important decision a Litigation Guardian will have to make is whether to ultimately accept a settlement, proceed to trial, or discontinue an action. While the lawyer handling the lawsuit cannot accept a settlement without the Litigation Guardian’s instructions, parties under a disability have the additional protection of the Court. In Ontario, all settlements of claims of persons under a disability must be reviewed and signed off on by a Judge. The purpose of this is to ensure that the settlement is reasonable and in the best interests of the party under a disability. While this process adds an extra step to finalizing a settlement, it should also give the Litigation Guardian peace of mind that an additional safeguard exists to protect the interests of the party under a disability.
Written by Andrew Sprung / Insurance, Personal Injury / January 03, 2020
Thanks to the Ontario Trial Lawyers Association (OTLA) for this article https://www.otla.com/