ACTING AS A LOVED ONE’S LITIGATION GUARDIAN: RESPONSIBILITIES AND RISKS

Mar 7, 2024

This blog post expands on Adam Giancola’s blog series about the role of litigation guardian at common law.

 

If your loved one is involved in litigation but lacks the capacity to understand and make sound decisions related to their court proceeding, or is a child under the age of eighteen, they will require a litigation guardian to participate in litigation. All litigation guardians must be over the age of eighteen.

A litigation guardian steps into the shoes of the party under disability and makes decisions arising from the litigation on that person’s behalf. It is a considerable and often demanding role, but one that is critically important to safeguarding the interests of parties under disability in Ontario.

 

Getting Started

Under Rule 7.02(2) of the Rules of Civil Procedure, any person who wishes to act as a litigation guardian, except the Children’s Lawyer and Public Guardian and Trustee, must file an affidavit with the court with the following information:

  • the proposed litigation guardian’s consent to act as litigation guardian;
  • confirmation that a named lawyer has been given written authority to act in the proceeding;
  • evidence regarding the nature and extent of the disability;
  • where acting for a minor, the minor’s birthday;
  • whether themselves and the person under disability are Ontario residents (the proposed litigation guardian is not strictly required to live in Ontario, but this is a factor for the court to consider);
  • their relationship to the person under disability (you do not have to be a family member);
  • whether the proposed litigation guardian has an interest in the proceeding adverse to the person under disability; and
  • acknowledges that they have been advised they may be liable to personally pay a costs award against the person under disability.

 

Responsibilities

The Rules of Civil Procedure sets out various requirements for litigation guardians:

  • Litigation guardians, other than the Children’s Lawyer and Public Guardian and Trustee, must be represented by a lawyer. These fees are to be paid from the party under disability’s assets.
  • All litigation guardians “must diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests”. Procedurally, this means ensuring that the correct procedures are followed. Substantively, this means acting reasonably and properly for the benefit of the person under disability.
  • The litigation guardian, on behalf of the party under disability, may only enter settlements that are in the best interests of the person under disability. Where there is a party under disability, judicial approval of the settlement is required and courts will only approve settlements that are in the best interest of that person. A lawyer will provide the litigation guardian with advice on what settlements may or may not be in the party under disability’s best interest.

It is also important to understand where the role of a litigation guardian starts and ends. A litigation guardian is not the same as a guardian or attorney for property or personal care. A litigation guardian’s role does not extend beyond issues within the litigation. Unless they are also an attorney or guardian of property, a litigation guardian cannot manage or hold the property of the person under disability, which includes settlement funds.

 

Risk

In litigation generally, the losing party is responsible for paying a reasonable share of the winning party’s legal fees; this is called a “costs” award.

As discussed above, there is a risk that a litigation guardian could be personally liable for costs awards against the person under disability. The reason for this is to prevent litigation guardians from acting frivolously or improperly at the expense of the party under disability.

This risk is why it is especially important for litigation guardians to hire competent, trusted counsel to provide advice on how to act reasonably and appropriately during litigation.

 

Rebecca Suggitt

 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer. 

 

ANGELA CASEY PRESENTS AT “THE ANNOTATED GUARDIANSHIP APPLICATION” PROGRAM

Mar 7, 2024

I am grateful to Jan Goddard and Yasmin Vinograd for inviting me to be a panelist at the Annotated Guardianship Application program on March 6, 2024. They obviously put a lot of thought and care into choosing interesting topics and great speakers. Each time I participate in the program, I end up learning new things from the other speakers and panelists:

Meredith MacLennan offered three tips for registering guardianship orders on title. Guardianships sometimes arise in situations where the vulnerable person is already being financially exploited. As a guardianship lawyer, I have seen unfortunate situations where vulnerable adults have signed paperwork that is manifestly against their best interests at someone else’s behest. Even with a guardianship order in place, there is nothing stopping a wrongdoer from manipulating an incapable person into signing documents to take out a mortgage or transfer title. Registering the guardianship order on title gives notice to anyone seeking to lend or purchase the home that the owner has a substitute decision maker. However, I learned yesterday that from a conveyancing perspective, this is not as easy as it sounds. Meredith’s top tip was to ask the court for a stand-alone order to register on title because the standard Judgment appending a management plan will not be accepted for registration.

Arthur Fish and Alexander Procope spoke about how to help litigants find an off-ramp from the destructive road of guardianship litigation through alternative dispute resolution. I especially valued Arthur Fish’s insights about delving into the family history of high-conflict/low resolution families to uncover the trauma that is truly driving the family conflict.

Various speakers answered some tough questions from the audience, like whether “joint and several” guardianship appointments are possible (Lisa Filgiano clarified they are not). Doreen So shared an example from her own practice where she came up with a creative partial guardianship solution when a Florida property could not be transferred utilizing an Ontario power of attorney.

The program was chock full of practical advice on how to do a guardianship application from the first meeting with the client through to closing your file. The annotated precedents have been expanded over the years to include a retainer letter, a Notice of Application, an affidavit, a management plan, a guardianship plan, a closing letter, and a Judgment. The program is still available for viewing through the LSO, and I highly recommend it.

 

Angela Casey

 

Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.