Litigation Guardians and the Office of the Public Guardian and Trustee

In Ontario, the Office of the Public Guardian and Trustee (“PGT”) is part of the Victims and Vulnerable Persons Division of the Ministry of the Attorney General. The Public Guardian and Trustee Act sets out the PGT’s role, responsibilities and duties.

Most lawyers become familiar with the PGT in the context of seeking a litigation guardian of last resort in a proceeding pursuant to the Substitute Decisions Act or the Rules of Civil Procedure.

If you believe that your client is incapable of providing you with instructions during the course of your retainer, you are obligated under the Rules of Professional Conduct, in so far as it is reasonably possible to maintain a normal lawyer-client relationship. It may be prudent to seek advice from the PGT or seek the appointment of a litigation guardian where appropriate.

Often times, the client may have a friend or family member who is willing to take on that role however there may be circumstances where there is no one able or willing to take on the role. The PGT may only be appointed as a litigation guardian of last resort. Once appointed, the PGT is responsible for taking all steps necessary in the litigation process to protect the interests of the party under disability.

Typically, a motion is usually required where the PGT is to be appointed as litigation guardian. Depending on the circumstances of your case, the motion materials should include affidavit evidence setting out the basis for the individual’s lack of capacity. Where there are legitimate concerns with maintaining lawyer-client privilege, a sealing order may be required. Counsel should provide the PGT with a proposed draft order.

Once the PGT is appointed as litigation guardian, unless the PGT is also the incapable person’s guardian of property, there is no obligation on the PGT to fund the litigation, which is the responsibility of the party under disability. Any money that is payable to a person under disability under an order or a settlement should be paid into court, unless a judge orders otherwise.

While this is just a general overview of the role of the PGT and your responsibilities with respect to appointing a litigation guardian, more information and resources can be found here.