In a prior post, we took a closer look at Court-appointed attorneys and their specific roles in guardianship proceedings. In every case, whether the Proposed Ward can truly afford it or not, the Court appoints an attorney ad litem to act as the Proposed Ward’s legal counsel. While that appointment is mandatory, the Court has the option (not a requirement!) to also appoint another attorney, known as the “guardian ad litem” for the Proposed Ward. The two roles may sound a bit similar, but they are in fact vastly different.
Just as any attorney ad litem must obtain and maintain special certification by the State Bar in order to be eligible for the appointment, so too must every guardian ad litem. However, the mandatory certification is just about the extent of the similarities between the two appointed roles.
While the attorney ad litem is bound to advocate for the Proposed Ward’s legal interests, the guardian ad litem is primarily concerned with the Proposed Ward’s “best interests.” On occasion, legal interests and best interests are precisely the same thing. Other times, they very clearly are not.
Remember that the attorney ad litem must treat the Proposed Ward like any other client. Confidentiality and the duties of loyalty and zealous advocacy apply. However, the guardian ad litem is not bound by a similar relationship. The guardian ad litem’s job is not to follow the Proposed Ward’s desires and decisions, but instead, the guardian ad litem often acts as an additional arm of the Court to gather information and evaluate what the guardian ad litem believes to be in the bests interests of the proposed ward, even if that decision conflicts with what the proposed ward believes to be in his own best interest.
A guardian ad litem will meet with the Proposed Ward, observe their ordinary daily routine, interview the parties to the guardianship, review any medical information, and generally soak up as much objective evidence as possible. Then, they will usually take a solid position on what the Court should or should not do to best protect the Proposed Ward. Their position may echo the guardianship applicant’s desires, the Proposed Ward’s desires, or fall somewhere in the middle.
The limit of a guardian ad litem’s role remains about as murky as you might expect. What do “best interests” really mean? As a result of a less-than-concrete definition of duties, you find different attorneys applying their own best judgment to the task when called to do the job. The role of the guardian ad litem is certainly important in the cases where the Court chooses to appoint one. It would be nice if the legislature provided a bit more substance to the rules related to them in order for them to be uniformly and effectively applied in guardianships all across our State.