Capacity and Family Law

The law often deals with people who do not have capacity to give instructions. Capacity can be lost due to degenerative diseases, such as dementia, as the result of illness or following an accident particularly one where someone has suffered a traumatic brain injury.

When a party to a Family Law matter does not have capacity, the Family Law Act 1975 allows a third party to be appointed as their Litigation Guardian.  A Litigation Guardian stands in the shoes of the party to the relationship who lacks capacity. Under the Federal Circuit Court Rules, the Litigation Guardian

(a)  must do anything required by these Rules to be done by the party; and

(b)  may do anything permitted by these Rules to be done by the party.

[Rule 11.09(2) Federal Circuit Court Rules 2001].

Who can become a Litigation Guardian?

The Federal Circuit Court Rules provides that an adult who “has no interest in the proceeding adverse to the interest of the person needing the litigation guardian” can be appointed as a Litigation Guardian. In matters where we have obtained Litigation Guardian’s for our clients, we have had a sibling act as Litigation Guardian and in another one of the party’s adult children.

While little restriction is placed on who can be the Litigation Guardian, careful thought must be given to who can fulfill the duties and obligations that come with being a Litigation Guardian. If the person being considered does not want to attend Court, is not inclined to participate in the proceedings or does not want to make a decision they will not be a sensible choice to be the Litigation Guardian.

How is a Litigation Guardian appointed?

A person can request the Court to appoint them as Litigation Guardian for a person who does not have capacity. The Court also has the power to appoint a Litigation Guardian by its own motion of it believes someone requires a Litigation Guardian.

The role and responsibilities of the Litigation Guardian

Being the Litigation Guardian is a serious appointment and should not be agreed to without proper thought and consideration. The Litigation Guardian is required to always act in the best interest of the party who lacks capacity and they must participate in the litigation process.

As they stand in the shoes of the party to the relationship their role includes: -

• giving the solicitor instructions to prepare Court documents and signing the Court documents;

• attending Court dates and mediations;

• providing disclosure on behalf of the party without capacity,

• instructing the solicitor in relation to offers of settlement.

The Litigation Guardian is also required to obtain proper legal advice about the matter, understand the advice and carefully consider any proposed settlement. A Litigation Guardian is not allowed to profit from their appointment. They are also responsible for the payment of the lawyer’s fees or any cost order (if one is made against the party they are appointed for).

It is important that the person considering being appointed the Litigation Guardian understands the obligations and responsibilities of their role before they accept an appointment.

How to lawyers determine if someone has capacity?

It is not an easy exercise for a lawyer to determine whether a client does not have capacity to give instructions. A lawyer is required to consider a number of factors when assessing capacity, with the starting point to assume that the client has capacity.

When considering capacity for a Family Law matter, the lawyer also needs to consider the relevant test set out at Rule 11.08 of the Federal Circuit Court Rules. It states: -

For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.

It can also be useful for a lawyer to obtain medical advice about their client’s capacity from their doctor, however a lawyer cannot delegate their duty to assess the client to a third party. It is not sufficient for a lawyer to send the client to a doctor to determine whether or not they have capacity.

The other difficulty for lawyers is that someone may not have capacity to make a Will, but they can be deemed to have capacity to give instructions in a Family Law matter. This means the lawyer cannot rely on another lawyer’s assessment to determine whether their client has capacity.

How to we conduct our capacity assessment?

We have a general process for assessing capacity when it is an issue for one of our clients. Our process will change slightly between matters to ensure it meets the needs and circumstances of each individual client.

Generally, if one of our lawyers finds that capacity may be an issue, we identify this with the client and explain why we need to assess their capacity so that they understand the process and, if capacity is found to be lacking they understand why a Litigation Guardian may be needed. In our view, the lawyer needs to be transparent with the client so that they are involved in the process and they understand what is happening.

For our capacity assessments, we refer to the guide published by the NSW Law Society ‘When a client’s mental capacity is in doubt: A practical solution for solicitors’. https://www.lawsociety.com.au/sites/default/files/2018-03/1191977_0.pdf

When meeting with a client to gauge capacity, we have several meetings with the client which will involve two of our lawyers, each making an independent assessment of the client’s capacity. We try to organise our meetings with the client at different times of the day to see whether the client may have capacity to give instructions in the morning, but not of an afternoon.

We also obtain any information and reports from doctors, specialists or ACAT which may help us in determining whether the client has capacity or what level of capacity they may have.

Once we have completed the process that is relevant for our client, we decide whether we believe the client has the necessary capacity to provide us instructions in their matter. Our decision then needs to be communicated and explained to the client and a plan developed for moving forward with the matter.

Please note: the information in this article is general in nature. For specific advice about your circumstances, contact us to make an appointment with one of our solicitors.