Parties Under Disability – Who Can Advance Their Interests and How Does One Get The Authority To Do So?
In estate litigation it is not uncommon for one or more disputing parties to be under disability. Unless the court or a statute provide otherwise, a party under disability must be represented by a litigation guardian (see Rule 7 of the Rules of Civil Procedure, which regulates proceedings by or against parties under disability).
Someone can act as the litigation guardian for a plaintiff (or applicant) by filing an affidavit with the court, the required contents of which are set out in Rule 7.
In the case of a defendant (or respondent) who is a minor, the Children’s Lawyer shall act as the litigation guardian, unless the court orders otherwise.
In contrast, in the case of a defendant who is an adult, aside for a few exceptions set out in the Rule, no one can act as a litigation guardian until appointed by the court. The evidence that must be filed in support of the motion for such appointment is also particularized in the Rule.
Some other noteworthy provisions in Rule 7 are:
· a litigation guardian other than the Children’s Lawyer or the Public Guardian and Trustee must be represented by a lawyer;
· a litigation guardian shall diligently attend to the interests of the person under disability and take all steps necessary for the protection of those interests, including the commencement and conduct of a counterclaim, crossclaim or third party claim;
· where it appears to the court that a litigation guardian is not acting in the best interests of the party under disability, the court may substitute the Children’s Lawyer, the Public Guardian and Trustee or any other person as litigation guardian; and
· no settlement of a claim made by or against a person under disability, whether or not a proceeding has been commenced in respect of the claim, is binding on the person without the approval of a judge.
Have a great day,