What is a Litigation Guardian?

January 2019

This post will explain the roles of a litigation guardian, his or her duties, conflicts of interest, and how a guardian can be removed.

A litigation guardian is a person appointed by the courts to represent another person at trial. A litigation guardian may be needed to represent someone under the age of 18, or someone who lacks the mental capacity to make proper decisions.

Duties

The duties of a litigation guardian are outlined in Rule 7.05(2 ) the Rules of Civil Procedure:

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…

In other words, a litigation guardian can start, or defend a lawsuit on behalf of a minor or mentally incapable person. They must do so “diligently”, and not in the interest of themselves, but in the interest of the person they are representing.

Conflict of Interest

Because a litigation guardian must represent someone without triggering any potential conflict of interest, parents may be barred from representing their own child. For example, if a child was injured in a car while one parent was driving, there may be a conflict between the child and parent. In this case, the child must have a different guardian appointed.

Removal

Litigation guardians can also be removed according to Rule 7.06. There are three main scenarios in which this can happen:

  1. When a minor reaches the age of majority. In other words, when a child becomes 18 years old.
  2. A party under disability is no longer under disability. For example, a person awakens from a coma.
  3. A court determines that the litigation guardian is not acting in the best interests of the person being represented. For example, the court suspects that there may be a conflict of interest. In this case, a court can appoint a Public Guardian and Trustee, or a Children’s Lawyer.

It can be difficult to fully understanding the roles and responsibilities of a litigations, and it is a good idea to be advised by an experienced lawyer.

Author

Matt practises in the area of civil litigation with an emphasis on personal injury litigation. Matt attended Western University where he obtained his Bachelor of Arts (Hons.) in 2009 and received his Juris Doctor from the University of Ottawa in 2012. Matt was called to the Bar of Ontario in 2013. More →