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1 Aug 2017

In this series we will discuss the fundamental basics of Family Law, providing information and guidance that may answer questions you have throughout the Family Law process. This week, we discuss case guardians and their role in Family Court proceedings.

In summary, a case guardian is someone who can step into the shoes of a party to a proceeding who lacks legal capacity in order to manage their affairs.

Legal capacity is defined as a person’s capacity to make reasonable judgements. We explore the topic of legal capacity in legal proceedings further in our family law basics article which will be published soon titled “Legal Capacity and Family Law”.

Under the Family Law Rules 2004, the term “case guardian” is used in the Family Court for a person who acts in the interests of a person with a disability, whether the person with a disability is the applicant or defendant. The law requires that a person with a disability only start, continue, respond to, or seek to intervene in, a case by a case guardian.

Who can be a Case Guardian?
The law states that a person may be a case guardian if the person is::

  • An adult (over the age of 18 years);
  • Has no interest in the case that would be adverse to the client;
  • Can fairly and competently conduct the case; and
  • Has consented to act as a case guardian.

Appointing a Case Guardian
A case guardian can be appointed by way of an application by:

  • Either one of the parties;
  • The proposed case guardian; or
  • The Court.

In most circumstances, a case guardian is a family member or a close friend. Even if a party lacks capacity to conduct the proceedings, they may still have adequate capacity to select their preferred guardian.

In instances where party who lacks capacity has already appointed someone to manage their affairs, for instance a power of attorney, it is a good idea for that person to take on the role of case guardian.

Duties of a Case Guardian

Under Western Australian legislation, the case guardian is a substitute decision maker for the person under their guardianship. A case guardian has many functions and powers conferred on them in their role as a case guardian.

However, a case guardian’s primary functions are:

  • To decide what education and training the person is to receive;
  • To decide with whom that person is to associate;
  • To commence, conduct or settle any legal proceedings on their behalf, except proceedings relating to their estate (a function for their Executor and Trustee); and
  • To defend or settle any legal proceedings, except proceedings relating to the estate of that person.

A case guardian will not be able to make substituted decisions for the person under their guardianship, but rather they should consider and take into account the views of the person under their guardianship. By doing so, a case guardian is able to then make decisions in the best interests of that person, however without being bound by the decision of the person under their guardianship.

Case Guardians in Family Law

A case guardian may seek parenting orders as shown in the case of Lambman & Lambman. In this case, the mother’s sister was appointed as the mother’s case guardian. The mother only had a short time to live and the sister, being the case guardian of the mother, applied for orders to facilitate time between the mother and her two sons. The boys and the father opposed the orders for spending time but the application was successful nonetheless.

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.

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