Bringing or defending legal proceedings

Bringing or defending legal proceedings

A ‘next friend’ represents a plaintiff or applicant under disability, and a ‘guardian ad litem’ represents a person under disability who is a defendant or respondent. A mentally incapacitated person, also known as a person under disability, can only bring, or make a claim in, any proceedings by his next friend. A guardian ad litem is necessary if the mentally incapacitated person wishes to acknowledge service, defend, make a counterclaim or intervene in any proceedings, or appear in any proceedings under a judgment or order notice of which has been served on him. Unless the next friend or guardian ad litem is the Official Solicitor, a next friend or guardian ad litem of the mentally incapacitated person must act by a solicitor.

Normally, no court order is needed to appoint a next friend or guardian ad litem, unless special circumstances apply.

If a person has been authorised under Part II of the Mental Health Ordinance to conduct legal proceedings on behalf of, or in the name of, a mentally incapacitated person, that person shall be entitled to be next friend or guardian ad litem of the mentally incapacitated person, as the case may be. This will be the case unless another person has been appointed by the Court to be the mentally incapacitated person’s next friend or guardian ad litem in those proceedings.

If a person was a party to the proceedings while they were competent, but subsequently becomes incapacitated, an application must be made to Court for the appointment of a next friend or guardian ad litem for that person.

The next friend or guardian ad litem must not have any conflict of interest with the mentally incapacitated person.