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02/Nov/2016
A Voice for the Vulnerable: Capacity in Personal Injury Litigation

There are many people who suffer from catastrophic injuries which irreversibly change their lives. A child is paralyzed in a motor vehicle accident. An elderly mother slips and falls in her nursing home and has a stroke. A spouse suffers a brain injury as a result of a medical error.

In these cases, the injured party may be legally incapable of retaining and instructing counsel to pursue legal proceedings against the wrongdoer.  However, just because someone cannot make decisions for themselves does not mean that they do not still have the right to sue and get the compensation that they deserve.


Representation of Children

In Ontario, minors are automatically legally incapable under the Rules of Civil Procedure.  Children require a Litigation Guardian to be appointed to retain and instruct counsel on their behalf, whose role it is to ensure that the incapable party is represented by an independent and competent person.

A Litigation Guardian must have no financial interest in the outcome of the litigation and cannot reap any benefits from the settlement. A Litigation Guardian is also required to file an affidavit in the legal proceedings which includes additional information such as consent to act as Litigation Guardian in the proceeding, a statement of his or her relationship to the person under disability, and acknowledgment that he or she has been informed of his or her liability to personally pay any costs awarded against him or her or against the person under disability.

If the child does not have a family member or friend available and willing to act as the Litigation Guardian, the Office of the Children’s Lawyer (“OCL”), a government body established to protect the interests of minors, will act as the Litigation Guardian.


Representation of Mentally Incapable Adults

The mental capacity of adults must be assessed on an individual basis.  Diagnoses which affect capacity, such as an acquired brain injury or mental illness, are not determinative as to whether an injured adult can retain and instruct counsel. An adult is presumed to be capable in making his or her own decisions, including being able to hire and instruct a lawyer.

Under the Ontario Rules of Civil Procedure, an adult lacks legal capacity if there has been a determination under the Substitute Decisions Act that the person is incapable of managing property or is incapable with respect to personal care decisions.  In these cases, the guardian of property or personal care will also act as the Litigation Guardian for the mentally incapable adult.

In order to assess mental capacity, a lawyer must determine whether the injured adult has the ability to understand information relevant to making a decision and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

If a mentally incapable adult has a previously executed Power of Attorney, when he or she had mental capacity, the Power of Attorney will act as the Litigation Guardian. If the incapable adult does not have a family member or friend available and willing to act as Litigation Guardian, the Office of the Public Guardian and Trustee (“PG&T”), a government body established to protect the rights and interests of mentally-incapable adults, will act as the Litigation Guardian.


Settlements On Behalf of Children and Mentally Incapable Adults

Court approval is required for any settlement agreed upon on behalf of a child or a mentally incapable adult.  The Litigation Guardian is not permitted to settle the personal injury litigation without the approval of the Court.  This requirement ensures that the interests of the incapable parties, who must rely on others to act in their best interests and to make decisions on their behalf, is protected.

There is a rigorous process for obtaining court approval of settlements. Materials that must be filed with the Court include an affidavit from the Litigation Guardian, an affidavit from the lawyer, the proposed minutes of settlement and the written consent of a minor if over 16 years of age.


Choosing Representation

Bogoroch & Associates LLP has extensive experience in acting for vulnerable persons who have been injured. By retaining our firm on their behalf, we will ensure that these children and mentally incapable adults get the access to justice and the financial compensation they rightfully deserve.

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