Litigation Guardians & Family Law

Blog post by Jeremy Gitsham

A ligation guardian is an adult who acts in court for a person with an incapacity that renders them incapable of making decisions in their own best interests. Essentially, a litigation guardian steps into the shoes of a party to a proceeding if they lack legal capacity to manage their affairs.

Federal Circuit Court Rules
Rule 11.08 – Person who needs a litigation guardian

1. For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
2. Unless the Court otherwise orders, a minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.

Litigation guardians can be family, friends or carers. It is important to note, that even if someone lacks capacity to conduct legal proceedings, they can still have enough capacity to choose their preferred guardian. However, pursuant to the Rules, the Court appoints litigation guardians.

Under the Rules, the Court can appoint a litigation guardian if he or she meets a number of criteria, including:

• being an adult, with no interest in the case adverse to the party’s interests; and
• is able to be fair and competently conduct the case; and
• consents to being a litigation guardian.

A litigation guardian is bound by the Rules and therefore must do all that is necessary to be done to act in accordance with the party’s best interests. This includes obtaining legal advice and doing what is required to try to resolve the matter.

Contact our family lawyers in Adelaide today for more information.