Capacity and Family Law – how a litigation guardian can help

Capacity and Family Law – how a litigation guardian can help?

We usually think of legal ‘capacity’ in terms of whether a person can understand the nature and effect of signing a legal document such as a last Will. What happens however when a person can’t effectively participate in family law Court proceedings because they are incapable of giving instructions to a lawyer or understanding the implications of those proceedings due to a mental disability?

Streeterlaw Accredited Specialist in Family Law, Simone Green explains the role of a Litigation Guardian and how they can help.

Where a person has a mental disability, they may start, continue, or respond to a family law court case (called ‘proceedings’) with the assistance of another consenting person (over 18) who does not have any conflicting interest and can provide instructions to a solicitor, or otherwise assist in the conduct of the proceedings on behalf of that person. This person is called a ‘Litigation Guardian’ in family law. In other jurisdictions they may be referred to as ‘Case Guardians’.

In circumstances where there is no appropriate friend, relative or associate to step in as Litigation Guardian, the Court may request the Attorney General to nominate a suitable professional person in this role.

Capacity and Family Law State Intervention

When it comes to capacity and family law, in some cases, there may have already been state intervention via a tribunal such as NCAT (in NSW) in which a Financial Manager has been appointed over the conduct of that person’s financial affairs. In that case, they are eligible to be appointed as litigation guardian for the person, provided they consent to act in this role.

Once a Litigation Guardian has been appointed by the Court, they will be bound by the Rules of the Court and must do anything required to be done by the ‘spouse party’ in the conduct of the case.

If you need to appoint a Litigation Guardian to assist you with capacity and family law or your family law issues, then you will need to obtain medical evidence from a medical practitioner such as a
neuropsychologist, psychiatrist, neurologist or other specialist setting out the reasons why a litigation guardian is required. The test for considering whether a person needs a litigation guardian is whether the person:

(a) does not understand the nature and possible consequences of the proceeding; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

Call our team of specialist solicitors at Streeterlaw today on 1300 293 985 and let us help you resolve your family law dispute.