A litigation guardian can be appointed by a court or tribunal, pursuant to the rules of the court or tribunal, when a person does not have the capacity to instruct their lawyer due to cognitive impairment or being under 18 years of age.
The fact a person has a disability does not, in and of itself, mean that they cannot provide instructions to a lawyer.
A litigation guardian effectively stands in the shoes of the litigant and provides instructions to a lawyer. The purpose of the role is to protect court process and the rights of litigants who would otherwise be disadvantaged.
Please note, OPA is not funded to provide a litigation guardian service
VCAT cannot appoint a litigation guardian. However, VCAT can appoint a guardian or administrator with power to undertake legal proceedings in the name of, and on behalf of the represented person, in relation to personal or financial matters named in the order. In this situation, the guardian or administrator does not need to be appointed litigation guardian in accordance with the rules of the relevant court or tribunal.
Guardians and administrators must have regard to general principles and decision-making principles set out in the Guardianship and Administration Act 2019.
Firstly, the Public Advocate may be appointed guardian with powers to bring and defend legal proceedings in relation to a personal matter, as described above.
Secondly, the Public Advocate may with the leave of a court or VCAT join as a party to proceedings or assist a court or VCAT as amicus curiae in proceedings that involve the rights and interests of a person with a disability.
Thirdly, the Public Advocate may advocate for the human rights and interests of a person with a disability by making representations or acting their behalf. It is on this basis that the Public Advocate may consider accepting appointment as litigation guardian under the rules of a court or tribunal.
In general, the Public Advocate is only prepared to be litigation guardian in matters which relate to a person’s contact with their children. If the litigation relates to financial matters, then it may be possible for VCAT to appoint an administrator with powers to bring and defend legal proceedings.
Please note, OPA is not funded to provide a litigation guardian service.