What Is a Litigation Guardian?

Litigation guardian – in a nutshell : Think of this role as a trusted standing driver for the courtroom journey.

When the person at the centre of a case is a child, lives with a significant cognitive disability, or is grappling with serious mental health issues, the court won't leave them to navigate the case alone.

Instead, it appoints a capable adult to take the wheel—making decisions, instructing solicitors, and safeguarding that person's rights from the very first filing right through to the final orders.

It's easy to mix up a litigation guardian with a legal guardian Australia wide, but the jobs are worlds apart.

A legal guardian handles day-to-day life decisions—think schooling, healthcare, housing. A litigation guardian, by contrast, exists for one purpose only : running the court case.

And this isn't optional paperwork. Australian family law hardwires the role into the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (FCFCOA) Rules—specifically Rule 11.08.

The FCFCOA is a superior federal court, which means its rules are binding nationwide. If a party can't grasp the proceedings, the judge will insist on a litigation guardian before the matter can move so much as an inch.

Just being merely busy, stressed, or unwilling is not a valid reason for a litigation guardian. The court will only appoint a guardian as a last resort when genuine incapacity is proven.

Importantly, the proposed litigation guardian must consent to act, and this is usually done by filing a signed affidavit of consent with the court alongside the appointment application.

Why does capacity matter?

Trials and negotiations are packed with tight deadlines, complex evidence, and highstakes decisions.

To participate fairly, a person must understand what's happening, weigh their options, and instruct their lawyer. When age, disability, or illness blocks that understanding, the risk of an unfair outcome skyrockets.

A litigation guardian plugs that gap. They review evidence, weigh settlement offers, and choose the best strategy—always through the lens of what benefits the person they represent.

At Unified Lawyers we've guided many clients through cases that required litigation guardianship, so we know the pitfalls and the quick wins. Our expert team couples legal precision with down-to-earth advice, keeping the process clear, compassionate, and firmly on track.

It is important to note that family lawyers themselves have a professional duty to monitor a client's capacity. If a lawyer has concerns that a client does not understand the proceedings or cannot adequately instruct, they may be obliged to raise the need for a litigation guardian.

When is a litigation guardian required in family law?

The need for a litigation guardian family law matter usually arises when a party:

• Is a minor (under 18 years old);
• Has a cognitive or developmental disability;
• Experiences severe mental illness or psychiatric conditions;
• Is temporarily or permanently incapacitated due to injury, illness, or age related issues.

If someone can't make sense of the legal process or handle their own case—because they're a child, mentally unwell, or cognitively impaired—the court can step in.

Under Rule 11.08 of the FCFCOA Rules, it has the power to appoint a litigation guardian to take the reins.

Typical scenarios include :

• Sorting out property settlements for children who've received an inheritance or significant gifts;
• Parenting disputes where a parent struggles with mental illness or intellectual disability;
• Consent orders that involve someone who can't fully understand or agree due to cognitive issues.

And there's more: under s.68L of the Family Law Act, the court can also name someone to represent a child's interests—sometimes overlapping with the role of a litigation guardian. It all depends on what the case needs to ensure everyone involved gets a fair go.

In rare cases, the court can allow a minor (such as an almost 18 year old) to proceed without a litigation guardian, but this requires specific court permission and is generally only allowed in straightforward, uncontested matters.

Who Can Be Appointed as a Litigation Guardian?

To be eligible, an individual must :

• Be an adult with full legal capacity;
• Not have an adverse or conflicting interest in the case;
• Be willing and competent to act;
• Have the financial ability or provide security for costs if required.

Typical Appointees :

• A parent, grandparent, or adult sibling;
• A legal carer or close family friend;
• A professional from the Office of the Public Guardian or Public Trustee;
• A representative from a not-for-profit support organisation.

Ineligible Candidates :

If someone stands to gain from the outcome of the case or is already tangled up in a separate legal battle with the person needing representation, they're off the table.

The court needs a litigation guardian who's completely neutral—no hidden agendas, no conflicts, just someone ready to act in the other person's best interests from start to finish.

It is important to understand that even if someone holds a Power of Attorney for the person, they do not automatically become their litigation guardian in court proceedings. The court still needs to be satisfied that the person lacks capacity and that the attorney is suitable to act as litigation guardian.

Legal Requirements & Court Tests

The formal appointment process includes :

1. Completing the Application for Appointment of a Litigation Guardian (FCFCOA form);
2. Filing an Affidavit supported by medical or psychological evidence confirming incapacity;
3. Demonstrating the guardian's capability and neutrality;
4. Addressing cost liability and indemnity concerns, where necessary.

Judicial officers closely scrutinise applications. The court will decline an application if it does not meet the criteria under relevant court rules and legislation. See FCFCOA practice directions for further guidance.

In practice, the appointment of a litigation guardian may cause delays in the main proceeding while sufficient evidence of incapacity is gathered. Medical reports or expert opinions are usually required and if contested, the court may adjourn to obtain further evidence.

Guardian legal duties and responsibilities (What a Litigation Guardian Must Do)

Litigation guardians are held to high standards and must :

• Act in the best interests of the represented person at all times;
• Engage and instruct solicitors on behalf of the individual;
• Respond to legal correspondence and accept service of court documents;
• Attend court hearings as necessary;
• Assess and negotiate settlement offers—and consent to settlement terms where appropriate.

According to guidance from the Law Society of NSW, our family law solicitors emphasise that litigation guardians must remain objective, meet court deadlines, and seek independent advice where the represented person's welfare is at stake.

Litigation guardians must also be aware that they may override the represented person's wishes if necessary to act in their best interests, particularly if the represented person cannot properly understand the consequences of decisions.

Potential Risks

Being a litigation guardian isn't just a supportive role—it's a serious legal responsibility. If the case goes sideways, and especially if it's found to be without merit or poorly handled, the guardian can be hit with a personal costs order.

That means paying the other side's legal fees out of pocket. It's rare, but it happens, and it underscores just how crucial it is to stay on top of timelines, documents, and legal advice.

Importantly, under section 117(6) of the Family Law Act 1975, a litigation guardian is protected from costs order unless they have acted unreasonable or caused undue delay.

However, litigation guardians are still responsible for the legal costs they incur on behalf of the represented party, and must usually arrange to recover these costs from the person's assets where appropriate.

Example Scenario

Grace, a spry grandmother, steps up as litigation guardian for her 15-year-old grandson during a bruising property dispute.

She marshals bank statements, signs affidavits, and keeps the lawyers on schedule—securing a settlement that protects the boy's share of the family home.

A single misstep—a missed filing deadline—earns her a stern judicial warning that delays could saddle her with the other side's costs. Shaken, Grace revamps her system with colour-coded folders, calendar alerts, and fortnightly check-ins with counsel.

The lesson?

Acting as a litigation guardian isn't a casual favour – it is a serious legal role. Staying organised, responding to the court promptly, and following legal advice closely are critical shield against personal liability.

How to Appoint a Litigation Guardian (Step-by-Step)

1. Obtain a medical or psychological report confirming the person lacks capacity.
2. Identify a suitable adult to act and get their written consent.
3. Prepare the formal court Application and supporting Affidavit.
4. File the documents with the appropriate FCFCOA registry.
5. Serve the application on all relevant parties in the matter.
6. The court may list the matter for a brief hearing before issuing orders.
7. If granted, the litigation guardian files a Notice of Address for Service and assumes responsibility.

Misconceptions About Litigation Guardians

1. Only parents can be litigation guardians :
In fact, any eligible adult—such as a grandparent, family friend, or legal advocate—may be appointed, provided they meet the court's criteria.

2. Litigation guardians manage financial affairs :
This is incorrect. A litigation guardian only represents a person in legal proceedings. Financial management is a separate responsibility, often handled by an administrator or trustee.

3. The court will automatically appoint a guardian if needed :
Most cases require a formal application supported by evidence. The court rarely appoints someone without this process being initiated by a party or representative.

4. Litigation guardians are always paid :
In most circumstances, litigation guardians act on a voluntary basis. Payment or cost recovery must be specifically approved by the court.

FAQ's

1. What is a legal guardian Australia wide, and how does that differ from a litigation guardian?

A legal guardian makes day-to-day decisions about a person's care—such as schooling, medical treatment, and accommodation—whereas a litigation guardian only steps in to conduct court proceedings on that person's behalf.

2. What does legal guardian mean?

A legal guardian is an adult legally recognised as having the responsibility to make personal and lifestyle decisions for a child or incapacitated adult, including medical, educational, and welfare related matters.

3. Can the litigation guardian be removed?

Yes—but not automatically. If a litigation guardian is failing to act in the best interests of the person they represent, or if their own circumstances change (like a conflict of interest or serious illness), the court can step in.

Any party to the case can apply for their removal, and the court will consider whether continuing the appointment is appropriate.

4. Is a litigation guardian entitled to payment?

Generally, no. Most litigation guardians act on a voluntary basis. However, if their role incurs out-of-pocket expenses (like travel or professional advice), the court may allow those costs to be reimbursed—either from the estate of the represented person or from another party, depending on the case.

5. What's the difference between a litigation guardian and a legal guardian?

A legal guardian is responsible for the daily care and decision making for a child or incapacitated adult—things like schooling, health care, and accommodation.

A litigation guardian, on the other hand, is specifically appointed to manage that person's involvement in court proceedings and ensure their legal interests are protected.

6. Does a child still need an Independent Children's Lawyer (ICL) if they have a litigation guardian?

Sometimes. While both roles are there to protect the child's interests, they serve different purposes. An ICL acts as an impartial legal representative for the child and provides an independent view to the court.

A litigation guardian is more directly involved in the case, instructing lawyers and making decisions. In complex matters, the court may appoint both.

7. What happens if there's no suitable family member to act?

If no one close to the person is able or willing to take on the role, the court has other options. It can appoint the Public Advocate or the Public Trustee, or refer the matter to a community legal service.

In some cases, a pro bono advocate or a representative from a support organisation may step in, depending on the jurisdiction and circumstances.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.