When a victim in a personal injury or sex abuse case lacks the capacity to instruct their lawyer, a litigation guardian is required. The law describes the victim who requires a litigation guardian as a “party under disability,” and this usually happens when that person is a minor or lacks the mental capacity to make certain decisions.
Does this make the settlement any different?
When acting as a litigation guardian for a party under disability, there are a few key differences that you need to know. In order to settle a claim made by or against a party under disability, no matter how far into the proceeding you are, Ontario law states that a judge’s approval is required for the settlement to be binding. This requirement is a crucial barrier that protects people under disability as it ensures the court can investigate any proposed settlement to prevent the most vulnerable from being taken advantage of.
What material does the judge require to approve a settlement?
In order to gain approval, a judge requires these three documents to accompany a motion or application:
- An affidavit of the litigation guardian
setting out the material facts and the reasons supporting the proposed
settlement and the position of the litigation guardian in respect of the
settlement,
- An affidavit of the lawyer acting for the
litigation guardian setting out the lawyer’s position concerning the
proposed settlement, and
- A copy of the written agreement outlining the proposed settlement terms, also known as the proposed minutes of settlement.
In addition to those requirements, if the party under disability is sixteen or seventeen years old, the minor’s written consent is required unless the judge orders otherwise.
What happens to the settlement money?
Unlike other settlements, any money payable to a party under disability received through a settlement must be paid into the court, unless the judge orders otherwise. This requirement ensures that what is best for the party under disability takes priority over all other interests.
If you are seeking a settlement while acting as a litigation guardian, it is vital that you speak with an experienced lawyer to ensure that you follow all the proper steps when accepting a settlement.
Published on November 18, 2024
