What happens if your ten year old son or daughter get hurt in an accident due to someone’s negligence? Or what happens if you as an adult get hurt in an accident and lose your mental capacity? How do you sue the at fault party? A ten year old child and a mentally incapable person are viewed by the law as not having the capacity to start or maintain a court action. At law they are both considered persons under a disability. So what to do?
If the disabled adult person had prepared a power of attorney before they lost capacity then that is very helpful and that person can on behalf of the disabled person start and process a court action. But a ten year child will not have had prepared a power of attorney. What then?
Even if the disabled person did not prepare a power of attorney the rules in Ontario allow, without the order of a judge, another person who is not disabled, to act on behalf of the disabled person to start and maintain a court action.
Under the rules lawyers and their clients are given a lot of flexibility when it comes to appointing litigation guardians. When a child is involved the litigation guardian is almost always one of the parents. When a disabled adult needs a litigation guardian it is usually another family member. If no family members are willing to act as litigation guardian then it is either the office of the Children’s lawyer of Ontario or in the case of adults the Public Guardian’s Office.
There is one thing to be careful with. Since a child or a disabled adult cannot at law be liable for the consequences of starting and maintaining a court action the litigation guardian has to agree to assume the responsibility. Usually the big risk is legal costs of the other side.
In addition, no settlement of any court action in Ontario involving a person under disability can occur without the approval of a judge. Of course this is to protect people under disability. When a child is involved almost always settlement money that is paid by a defendant for damages is paid into court and held by the court until that child reaches the age of eighteen years. This doesn’t always apply – especially where the child’s injuries require money for ongoing treatment or care.