Case Guardians

When husbands and wives or defacto partners separate, most parties will seek independent legal advice, negotiate a settlement and execute a document to formalise their agreement (either Consent Orders or Binding Financial Agreement). However, if one of the separating parties lacks the capacity to make their own decisions, then further steps are required to be taken in order for the Court to be satisfied that the settlement is just and equitable.

A client instructed us to represent her in finalising her property settlement. However, prior to providing these instructions, she was diagnosed with a degenerative illness which would eventually affect her capacity and ability to provide instructions. Since the client was aware that her health was deteriorating, from the commencement of our involvement in this matter, she provided us with her authority to discuss all matters with her Attorneys she had appointed under her Enduring Power of Attorney.

Prior to the parties reaching final agreement and signing the appropriate documents to formalise the agreement (Consent Orders and Application for Consent Orders), the client’s doctor issued a report stating that the client no longer had capacity to make day-to-day decisions. Since the client now did not have capacity, she could not consent to her own property settlement and she could not execute documents to formalise the agreement reached between the parties.

Notwithstanding the fact that the client had appointed Attorneys under an Enduring Power of Attorney (appointed when she had capacity), in order to obtain sealed property Orders from the Family Court, the Court requested that a Case Guardian be appointed to act on behalf of our client. One of the client’s Attorneys agreed to take on this role.

In order to have the Court appoint a Case Guardian for the client, we were required to look at Part 6.3 of the Family Law Rules 2004 (the “Rules”).

In accordance with Rule 6.09 of the Rules, a person may be a Case Guardian if the person is:

1. an adult;
2. has no interest in the case that would be adverse to the client;
3. can fairly and competently conduct the case; and
4. has consented to act as a case guardian.

We were also required to also look at Rule 6.10 of the Rules which sets out further requirements to be followed by the proposed Case Guardian, including providing evidence to the Court that the person being appointed as Case Guardian has been appointed manager of the affairs of the client and filing a Notice of Address for Service (to become a party to the matter).

Since these parties had reached consent in relation to property settlement, the Order seeking the appointment of a Case Guardian for the client was inserted in the Consent Orders to be filed with the Application for Consent Orders.  The proposed Case Guardian also executed an Affidavit outlining their suitability to be appointed as Case Guardian as set out in Rule 6.09 and Rule 6.10 of the Rules.

In the event a person was to lose capacity during contested proceedings before the Court, then an Application in a Case, supporting Affidavit and Notice of Address for Service would need to be filed in the Court by the proposed Case Guardian.

© Delaney & Delaney Solicitors. This publication is for information only and is not legal advice. You should obtain advice specific to your circumstances and not rely on this publication as legal advice. Should you have any queries in relation to this publication, please contact our office on (07) 3236 2604.