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.