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Understanding Litigation Guardians in Family Law

When a party facing legal litigation issues is not able to instruct their lawyer, perhaps because of mental impairment or they are under 18 years old, a litigation guardian is appointed to them by the court to work on their behalf. This guardian is there to ensure instructions given are all in the best interest of the party.

Can anyone be a litigation guardian?

Most often, a litigation guardian is a career, friend of the family member but if there is no one to fill the role then the court will allow an external party to be their litigation guardian. The person then needs to familiarise themselves with the circumstances, talk to litigation lawyers Perth and provide instruction that has their best interests at heart. The requirements for a litigation guardian is as follows;

  • They must be over the age of 18
  • There must be no personal vested interest in the situation so that their only focus is on the interest of the person they are acting as a litigation guardian for
  • They must consent to take on the role
  • They should have the ability to be competent and fair during the case

When is a litigation guardian needed?

  1. In matters of the Federal Circuit Court, a litigation guardian is needed when a party does not understand the consequence or nature of the proceedings they are in
  2. In matters taken to a Family Court, a litigation guardian is needed for any children or person who lack the capacity to understand the proceedings. In some legal litigation cases, the court may determine the child understands the nature and consequence and can proceed without one.

Understanding the process of appointing litigation guardians

People can apply to become a case or litigation guardian and if none are suitable the court will ask the AG to nominate someone, or the court may appoint one itself. The court can remove guardians and substitute them as they deem needed. When a person finds themselves in the role they must give notice in writing of that appointment to the other parties and their litigation lawyers Perth who are involved in the legal proceedings. The costs of the litigation guardian may be paid by one or both parties, or from the property or income of the person being appointed one. They must;

  • Remain bound by the court and its rules for the whole period of appointment as a case or litigation guardian
  • Do everything required for the party they are appointed to
  • Only work in the best interests of the party they are helping
  • Obtain legal advice that is appropriate to ensure they are working towards a resolution of the legal issue
  • Take part in alternative dispute resolution to resolve the legal issue if required

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