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What if someone does not have legal capacity?

Generally, when people separate following the breakdown of a relationship, each party will seek independent legal advice to negotiate a settlement or to commence Court proceedings. However, from time to time questions arise as to whether one of the parties has the necessary capacity to make their own legal decisions.

If questions about a party’s capacity arise it can be necessary to consult with the party’s treating doctor or specialist for an opinion as to the person’s capacity to understand legal advice and to make legal decisions.

Should the expert declare that the person does not have capacity – but the legal matter needs to proceed – it will be necessary to consider how instructions can be taken and, if Court proceedings are required, whether a Case Guardian should be appointed.

A Case Guardian is appointed by the Court in accordance with the requirements set out in the Family Law Rules 2004.

Rule 6.08 provides that a person with a disability may start, continue, respond or seek to intervene in a case only by a Case Guardian. A person with a disability is defined as a person who, because of physical or mental disability a) does not understand the nature or possible consequences of the case; or b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

Rule 6.09 states that a person may be a Case Guardian if the person: 1) is an adult, 2) has no interest in the case that would be adverse to the party, 3) can fairly and competently conduct the case, and 4) has consented to act as a Case Guardian.

More often than not the Case Guardian will be a member of the party’s family.

For example, in the case of Crowley & Child Support Registrar [2015] Mr Crowley’s mother sought to be appointed as his Case Guardian. In her Affidavit, Mr Crowley’s mother said that, as a result of a motor vehicle accident in 1992, Mr Crowley was permanently incapacitated; she attached medical documents supporting her statements. Mr Crowley’s mother also stated that she had been appointed his Power of Attorney and had been assisting her son for some time. Mr Crowley’s mother said she was familiar with the legal issues in dispute. Mr Crowley’s mother was appointed as his Case Guardian and the matter proceeded.

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