Appointees in Guardianship Proceedings Pt. 2: The Guardian ad Litem

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.

Appointees in Guardianship Proceedings (Part 1): The Attorney ad Litem

Guardianship proceedings often involve procedures that can be a bit confusing to most clients, no matter their position in the case. Among the items that makes guardianships unique is the Court’s use of appointed attorneys to fill specific roles. Over the next few posts, I felt it might be useful to outline why the Court appoints different people, as well as discuss the roles that the legislature intended these appointees fill.

In every guardianship proceeding, the Court must appoint an attorney (known as the “attorney ad litem”) for the individual alleged to be incapacitated (generally referred to as the “Proposed Ward”). The Attorney ad Litem is selected by the Judge and must obtain and maintain special certification by the State Bar of Texas in order to be eligible for appointments. By appointing an attorney ad litem to represent the Proposed Ward, the Judge makes sure that the Proposed Ward receives due process – a fair shake in a judicial proceeding. The attorney ad litem becomes the Proposed Ward’s attorney – to represent the Proposed Ward throughout the guardianship process so that his/her rights are not taken away unfairly.

Like every other attorney-client relationship, the attorney ad litem must maintain his or her client’s confidentiality and loyally pursue the lawful objectives as the client instructs. Just like every other attorney-client relationship, the attorney ad litem should meet with the Proposed Ward, review the Court’s file and discuss potential options and outcomes with the Proposed Ward. At the end of the day, the Proposed Ward’s instructions are the attorney ad litem’s marching orders. If the Proposed Ward opposes the guardianship, the attorney ad litem bears the obligation of opposing the guardianship as vigorously as though the Proposed Ward had hired the attorney himself.

In too many cases, I have seen attorneys ad litem take a lackadaisical approach to their obligations – particularly when the Proposed Ward shows outward signs of actually being incapacitated. Sometimes, attorneys ad litem are content to simply go through the motions of acting like their client’s attorney. Nothing could be more detrimental to the process than this. In fact, an attorney ad litem’s minimal efforts or complacency could very well harm the Proposed Ward by inviting an appeal or some other action by an interested party. The saying that comes to mind is, “if it’s worth doing, it’s worth doing right.”

The attorney ad litem should be the first to point out defects in the form or substance of an application or pleading. If there is an issue with a doctor’s evaluation, the attorney ad litem should be the first to call it to the Court’s attention. If the guardianship applicant lacks standing or might be disqualified, the attorney ad litem has an obligation to raise the issue and fulfill their purpose. Attorneys ad litem are appointed to advocate the legal interests of the Proposed Ward, and nothing short of their zealous advocacy provides their client with the due process to which he or she is entitled.