Often a family member, such as a mother, father, grandparent or sibling, will act as litigation guardian. However, there are times when a family member cannot act in the role of litigation guardian. For example, if the family member has an interest in the outcome of the litigation, that family member will not be allowed to act as litigation guardian because they are not a neutral party. This is sometimes the case in estate litigation where all members of a family may be interested in the outcome of the litigation and are seen as having a conflict of interest in the litigation.
The Public Guardian and Trustee (PG&T) is an entity established under the Public Guardian and Trustee Act, RSBC 1996, c 383 with a unique statutory role to protect the interests of British Columbians who lack the legal capacity to protect their own interests.
The mandate of the PG&T is to:
- Protect the legal and financial interests of children under the age of 19 years;
- Protect the legal, financial, personal and health care interests of adults who require assistance in decision making; and
- Administer the estates of deceased and missing persons.
The PG&T will consider taking on the role of litigation guardian only when:
- No other suitable person is willing to step in as litigation guardian;
- The incapable adult or infant has a viable claim which is a claim that has a realistic prospect of recovering damages and costs;
- There is outside counsel prepared to act in the case; and
- The PG&T has no conflict of interest.
One of the keys in having the PG&T act on behalf of an infant or incapable person is having funding available for outside counsel to represent the litigant. This means that the infant or incapable person must have some access to his or her own funds, or be represented on a contingency basis, or have other means of funding the litigation before the PG&T acts. The exact methods of this funding will be discussed in a future blog.
If there is a desire to have the PG&T act as litigation guardian in any litigation, the PG&T’s office should be contacted as soon as possible in the litigation process so that their position is clearly set out.
The role of a litigation guardian in any litigation is an important one. Courts want to ensure that litigants that do not have legal capacity are properly represented in a proceeding and that their interests are properly advanced. The PG&T is there to take on this role if there are no appropriate individuals (such as family members) who are able and willing to act in this capacity. However, the PG&T will only step in when the above criteria is met.
More information about the PG&T can be found at their website: http://www.trustee.bc.ca/Pages/default.aspx