Guardian Ad Litem | SW&L Attorneys

You have reviewed our previous article about the difference between a power of attorney and adult guardianship, and you have decided an adult guardianship was the way to go. Next, you reviewed our article about the steps of a guardianship, and you know what a guardianship entails and are ready to go through the guardianship process. So you hire a lawyer to get an adult guardianship set up. In speaking with your attorney, he/she mentions you will have to hire a person called a guardian ad litem who also happens to be an attorney. This article will explain what a guardian ad litem is, what you should expect from them, and what you should look for in hiring a guardian ad litem.

Before we dive into the role of a guardian ad litem, we need to review a couple of terms. First, the “proposed ward” is the person over whom you are trying to get the adult guardianship. Second, throughout this article and as used by attorneys and courts, the term “GAL” stands for guardian ad litem. Finally, the “Petitioner” is the person requesting an adult guardianship.

What Is A Guardian Ad Litem?

A GAL is an attorney whom the petitioner can request and is appointed by the court to serve the proposed ward with legal documents, interview the proposed ward, explain the adult guardianship process and implications, and make a determination on whether the proposed ward has the legal capacity (whether the proposed ward needs a guardianship). Finally, the GAL needs to inform the proposed ward of his/her legal rights.

Once the GAL has accomplished these tasks, the GAL will then submit a report, known as the “GAL reply,” to the court. The GAL reply will explain that the proposed ward was served with the legal documents, was interviewed, and contain the GAL’s recommendation on whether an adult guardianship is necessary. In the guardianship process, the GAL reply tends to be very persuasive to the courts when issuing the final guardianship decision.

What Should I Expect From The Guardian Ad Litem?

An interesting component of the duties of a GAL is that while the petitioner pays the GAL fees, the GAL can only represent the proposed ward’s best interests. That means the GAL has no duty to agree with the petitioner or help the petitioner obtain a guardianship. Likewise, the GAL does not represent the proposed ward personally. Instead, the GAL is tasked with making an independent recommendation to the court as to whether the proposed ward’s interests would be best served by the appointment of a guardian.

So what should you expect of the GAL? First, expect that the GAL does not represent you because he doesn’t. As mentioned above, the GAL is included in the guardianship process to ensure legal notice requirements are met and the proposed ward’s best interests are supported. Second, expect that the GAL may disagree with the petitioner. Having a guardian appointed over another person is a serious matter. As a result, the court and the GAL presume the proposed ward does not need a guardianship until proven otherwise. Finally, expect that the GAL will never communicate directly with the petitioner. Again, keep in mind the GAL is there for the best interests of the proposed ward.

What Should I Look For In A Guardian Ad Litem?

You need a GAL to go through the adult guardianship process. So what should you look for in a GAL? First, do NOT hire just any attorney. While any attorney can legally be a GAL, it does not mean you should hire him or her. A GAL has to walk a thin line between representing the ward’s best interests while still making recommendations concerning the proposed ward. On top of that, the GAL will be interviewing the proposed ward when the proposed ward is having a very difficult time – often when he or she is sick, confused, and distrusting of people. Unless the attorney has been a GAL before, this is a difficult process. This is a long-winded way of suggesting you ask your attorney to hire an experienced GAL who can navigate this sensitive and complicated procedure.

Second, do not look for a “Yes Man.” Believe it or not, there are GAL’s who always recommend a guardian be appointed. While you may think a guardianship is necessary, please keep in mind that having a guardian appointed is one of the most restrictive things that can be done to a person. Therefore, it is important that the GAL make an independent and thoughtful recommendation. Even if an adult guardianship is not necessary, you still have the power of attorney and other options at your disposal to protect the proposed ward.

Finally, ask your attorney for a few GAL recommendations. Be sure to ask whether the person your attorney recommends has GAL experience. If they do not, do some research online and find an attorney who does.

The area of guardianship law is complex. As always, this is meant for educational purposes only. If you have questions about requesting an adult guardianship or if you need a GAL for your adult guardianship process, call our Estate Planning Team at 701-297-2890.

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