All About Estates

Who Can Be a Litigation Guardian?

A recent decision by Master Kaufman examines whether a person with a personal interest in the legal proceedings can act as a litigation guardian for a party under a disability.

In Shady Saleh v. Mohammed Salehe, the plaintiff, Shady, was his mother’s power of attorney for property. He sought to be appointed his mother’s litigation guardian.  Shady alleged that his brother, Mohammed, used a false power of attorney document to transfer title of his mother’s house to himself, depriving his mother of her only real asset.

Mohammed denied the allegations and opposed Shady’s appointment as litigation guardian.   He argued that his mother’s litigation guardian should be someone with no personal interest in the outcome of the litigation.  If Shady was successful in his claims, and the home transferred back to their mother, Shady would benefit as an eventual beneficiary of his mother’s estate.  He also argued that the acrimonious nature of the relationship between the brothers disqualified Shady to act as a litigation guardian.

After reviewing the evidentiary record and declaring that their mother was incapable and a party under a disability, Master Kaufman was ask to determine if Shady was an appropriate litigation guardian for his mother.

Master Kaufman clarified that a litigation guardian could not have an interest in the proceeding that was adverse to the party under disability.  Master Kaufman found that Shady and his mother’s interests aligned. If the home were returned to his mother, she would recover her largest asset.  The impact on Shady’s “future” inheritance was minimal.  Master Kaufman clarified that the conflict of interest had to be real, not just perceived.

As for the argument that acrimony disqualified Shady to act as litigation guardian, Master Kaufman noted that the nature of litigation invited conflict but Shady and Mohammed had acted reasonably.  There was no indication that Shady would not act in his mother’s best interests due to his feelings towards his brother.

Shady was appointed his mother’s litigation guardian.  Often a litigation guardian for a dependant adult will be a family member who does have some type of personal interest in the outcome of the litigation.  That in itself is not enough to disqualify someone for the role.  As long as the proposed litigation guardian can act in the best interests of the party under disability, they will likely be appointed.

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About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com

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