Who is a Party Under Disability?
Any individual can be a victim of sexual abuse or other personal injury, including people who are legally considered a “party under disability”. Legally speaking, a “party under disability” is a person who lacks the capacity to instruct their lawyer. The most common parties under disability include minors (i.e. a person under the age of 18) and individuals who lack the mental capacity to make certain decisions.
What is a Litigation Guardian?
When a person under a disability is injured, they cannot independently start a legal proceeding. If a person under disability is injured, they must be represented by somebody else in litigation and during trial. This representative is called a Litigation Guardian, who is appointed to instruct the lawyer and to make decisions on behalf of the party under disability. The Litigation Guardian is tasked with making very important decisions, including whether or not to start a lawsuit, accept a settlement, go to trial, or stop the lawsuit partway. Litigation guardians must act in the best interests of the party under disability.
Should you be a Litigation Guardian?
To be a Litigation Guardian, a person must, among other things, consent to acting as a Litigation Guardian, confirm they have no interest in the proceeding adverse to that of the person under disability, and understand that they are personally liable (i.e. responsible) to pay costs awarded against them or against the person under disability.
Deciding who the Litigation Guardian should be can be a complex and important decision. Most often, the Litigation Guardian is a family member of the person under disability or somebody who is in a close caregiving role. Often, where the person under disability has a legal guardian or an attorney under a power of attorney, the same person acts as their Litigation Guardian in a lawsuit. If nobody is able or willing to be a Litigation Guardian, then the Children’s Lawyer or Public Guardian and Trustee may be appointed to act in that role. However, these are not hard and fast rules.
In some cases, it may not be wise for a parent to be the Litigation Guardian for their minor child. For example, in some cases, a parent may be brought into the lawsuit as a third party by a defendant who alleges that the minor child was injured in part because the parents failed to properly supervise them. In a case like this, the parent being third partied would have interests that do not align with that of the minor child. Being a litigation guardian could also involve significant financial risk on the part of the Litigation Guardian, who would be responsible for paying costs if they are unsuccessful in a lawsuit. If you are considering acting as a Litigation Guardian, it is important to speak about these concerns with an experienced lawyer.
