5(A)(i). Develop a constructive relationship with the guardian

Guardians have tremendous power over people whose legal capacity is restricted since they control the person’s finances, living situation, access to services, and have the power to contract on behalf of the person concerned, among other powers. As a result, guardians can directly and indirectly influence the person’s ability to pursue litigation. While the institution of guardianship is in itself a violation of rights under Article 12 of the CRPD, it should not be automatically assumed that an individual guardian will be unsympathetic to the issues. In some instances, for example, a guardian may have been appointed but have been completely inactive in making decisions on the client’s behalf. Indeed, they may never even have met the client despite being legally responsible for her/him as they may be appointed as guardian for a large number of people.

In these circumstances, a non-confrontational approach to the relationship to begin with may be best, along with a clear understanding of the guardian’s powers and obligations. A lawyer seeking mutually-acceptable solutions may be effective in achieving immediate progress in the specific case. Engaging constructively with a guardian may result in the guardian taking a decision to discharge the client from an institution, or in procuring services within the community to facilitate independent living. An initial friendly approach does not prevent subsequent strategic litigation to achieve recognition of the past violations of the client’s rights and restitution, compensation, rehabilitation and other remedies which may change laws or practices. However, lawyers must be attentive to limitation periods for the initiation of litigation to ensure that pre-litigation negotiation does not result in the barring of subsequent litigation due to statutory time limits.

In other instances there may be no guardian appointed or confusion over who the actual guardian is. For example, in one case which MDAC litigated, the client moved from one region of the country to another when he was discharged from the institution. A guardian was then appointed in the region where the client was moved without displacing the guardian in the former region. One guardian was supportive of his efforts to regain his legal capacity while the other was resistant. It is important to be familiar with the manner in which national law regulates such situations, as it is not unusual to discover that the law lacks provisions ensuring a clear solution. The lawyer should be prepared to capitalise on a period where the client lacks a guardian or where confusion arises. Such situations can create opportunities to have a valid power of attorney signed, to liaise with the guardianship authority so that a trusted friend or family member is appointed as the guardian, or to take steps which enable the client to leave the institution.