Generally when people separate following the breakdown of a relationship or marriage each party will seek independent legal advice to negotiate a settlement of the matters or to commence court proceedings if necessary. However from time to time questions may arise as to whether one of the separating parties has the necessary capacity to make their own legal decisions.
If someone has an illness or condition which could affect capacity and ability to provide instructions to a solicitor it is necessary to consider how instructions are to be taken and how advice is to be provided.
Sometimes it will be necessary to consult with the client's treating doctor or specialist for an opinion as to the person's capacity to understand legal advice and make legal decisions.
Should such an expert state that the person does not have capacity but the action or proceedings need to continue it will be necessary to consider 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 to or seek to intervene in a case only by Case Guardian.
A person with a disability is defined as a person who, because of the 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 of the rules state that a person may be a case Guardian if the person is:
1. An adult;
2. Has no interest in the case it would be adverse to the client;
3. Can fairly and competently conduct the case; and
4. Has consented to act as a case Guardian.
Evidence as to these factors is presented to the Court in the form of an Affidavit.
The recent case of Crowley and Child Support Registrar  reviewed the appointment of a Case Guardian.
In this matter Mr Crowley's mother sought to be appointed as his Case Guardian. Mr Crowley's mother filed an affidavit with the Court setting out evidence that as a result of a motor vehicle accident in 1992 Mr Crowley suffered a severe brain injury and that in 1994 he was classified as permanently incapacitated. Attached to the affidavit was medical evidence supporting these statements. Mr Crowley's mother also stated in her affidavit that she had been appointed his Power of Attorney, was familiar with the legal issues in relation to the proceedings and had been assisting her son for some time. Mr Crowley's mother was appointed as his Case Guardian.