What Is a Litigation Representative?
When a person has suffered an injury that warrants bringing a legal claim for compensation, the usual course is for that person to retain a lawyer to work with them through the litigation or settlement process. However, in some cases, a person’s injuries may be so severe that their ability to make decisions or manage their affairs is compromised. This is sometimes referred to as “lacking capacity” and this situation may be temporary or permanent depending on the injury.
A lawyer is not permitted to take instructions about the conduct of a legal proceeding from someone who lacks capacity. If a loved one is injured in a car accident to the point where they can’t instruct counsel, they will not be able to pursue any legal claim they may have against an at-fault driver. However, you or someone else close to your loved one may be authorized to do it for them. The person authorized to do so is called a litigation representative.
Alberta Legislation Governing Litigation Representatives
In Alberta, specific mechanisms exist to authorize a family member or someone else close to an injured person to act on their behalf in pursuing a legal claim. Rule 2.11 of the Alberta Rules of Court identifies situations where a person may be required to have a litigation representative to bring or defend a legal proceeding for them. This Rule applies to minors (persons under 18 years of age); it also applies to adults who lack capacity.
What Does “Capacity” Mean in Legal Terms?
Legislation defines “capacity” for the purposes of needing a litigation representative as “the ability to understand the information that is relevant to the decision, and to appreciate the reasonably foreseeable consequences of (i) a decision, and (ii) a failure to make a decision” (Adult Guardianship and Trusteeship Act, s. 1(d)). Therefore, incapacity can occur when a person is unconscious or unable to communicate because of a debilitating injury. Incapacity can also occur when a person is aware but is simply unable to effectively evaluate information they are given about decisions that need to be made.
If the second situation applies to your loved one, it may not be completely clear whether they do or do not have capacity. Determining whether someone has lost capacity is generally a decision that should be made in consultation with medical professionals. In most cases, the law requires a declaration from two medical practitioners (most often doctors or psychologists) stating that they have evaluated the person and found them to lack capacity. If there is a dispute about whether your loved one is capable of making decisions for themselves, a court may order that a capacity assessment be carried out.
In determining whether a person is capable of instructing counsel, courts have recognized that the issue relates principally to decisions as to whether to settle a legal proceeding and, if so, on what terms. It is not necessary that the person understand all the details necessary to settle their case; like anyone, they are entitled to rely on their lawyer or representative to guide them through the process.
However, courts have indicated that to meet the test for capacity to instruct legal counsel, a person must understand what they have asked the lawyer to do for them and why. They must also be able to understand and process the information, advice, and options the lawyer presents to them, and to appreciate the advantages, drawbacks, and the potential consequences associated with the options they are presented with (RMK v NK, 2020 ABQB 328 at para 145).
Where it is determined that a person cannot do these things, they will need to have a litigation representative.
Who Can Be a Litigation Representative for a Loved One That Lacks Capacity?
i. By Power of Attorney
The process for deciding who should be the litigation representative for someone not able to act for themselves depends on whether that person has previously signed a document, such as an enduring power of attorney (“POA”), that identifies the person they designate to fill that role. Many people execute this type of document ahead of time, as part of their estate planning, to be prepared for the possibility that others may need to act for them in case they suffer a catastrophic injury or illness.
A POA can be “springing”, meaning that it only takes effect once the person signing it loses capacity. The person who is named as the attorney may begin to act on behalf of the other person once incapacity has occurred without having to obtain a court order.
The POA will specify the types of acts that the attorney is authorized to carry out. Among other functions, it is standard for a POA to include language authorizing the attorney to commence, compromise, settle, or defend legal claims on behalf of the individual or their estate. Where the POA contains that language, the attorney is automatically considered to be the litigation representative, and has the authority to give instructions to counsel with respect to any legal matters affecting the person who has lost capacity.
ii. By Court Order
A POA needs to be signed while the person still has capacity. If a loved one or family member did not prepare a POA before being involved in an accident that results in the loss of ability to make decisions for themselves, or if the POA does not include a power to carry out litigation, it will be necessary to apply for a court order appointing you or someone else as their litigation representative.
A court order can be sought by any “interested person”. Generally, someone who has been involved in the injured person’s life and is a significant person to them will qualify to apply for appointment as a litigation representative.
The applicant must also be a resident of Alberta and must not have any interest in the legal action that is adverse to the person they are applying to represent. In addition, if you are applying to be the litigation representative, be aware that you will have to sign an acknowledgement agreeing to be liable for any court costs that may have to be paid if the litigation is unsuccessful.
If you would like to commence a legal claim for compensation on behalf of your loved one and do not have a power of attorney, a personal injury lawyer can help you prepare the documents that you need to file to obtain a court order appointing you as a litigation representative.
Scope of a Litigation Representative’s Authority
Once appointed as a litigation representative, you can work with a personal injury lawyer on behalf of your loved one to prepare and pursue any legal claims that they may be entitled to advance. This can include a lawsuit against an at-fault driver or their insurer, WCB or other disability benefit claims, or claims for other types of compensation. If your loved one is being sued, you can also work with the lawyer to manage their defence. Your decisions and instructions to the lawyer must be guided by what is in the best interests of the person you represent.
Evaluating Settlement Proposals
It is not uncommon during litigation for parties to exchange settlement proposals. If an offer of settlement is made, the lawyer advising you can help you evaluate whether the offer is reasonable and represents a fair resolution of your loved one’s claims. If you decide to agree to a settlement, it is usually necessary to submit it to court for approval. That step does not apply, however, if you became a litigation representative through a power of attorney that gave you express authority to settle, discontinue, or abandon legal proceedings.
How Can CAM LLP Can Help
When a loved one or family member suffers an injury, those around them can be called upon to provide many different types of support. In serious cases, this can include having someone appointed as a litigation representative to work with a lawyer and ensure that the injured person receives the compensation and benefits that they may be entitled to, and that will be important to support their recovery.
If someone close to you has suffered a serious injury and is unable to make decisions or act for themselves, the experienced personal injury lawyers at CAM LLP can advise you about the steps you may need to take in order to be able to act on their behalf. Contact us today for a free consultation.
