Guardian ad Litem

A recent appellate division case makes clear the role of a guardian ad litem.  When a person cannot handle his financial or medical affairs due to physical or mental disability, a guardian might be appointed for him.

In order to appoint a guardian for a person, a court action is required.  The court action must be supported by the reports of two physicians who have examined the incapacitated person and opined that he can no longer handle his financial or medical (or both) affairs due to mental or physical infirmity.

For instance, if Mr. Smith suffers a massive stroke, he may be unable to handle his affairs. If Mr. Smith failed to sign a power of attorney and an advanced healthcare directive, then no other person could make decisions for him.

Mr. Smith’s children will want to help him, but legally, they can’t because they don’t have the authority to make decisions for him or access his financial accounts (bank accounts, annuities, IRAs, etc.). One of his children will have to initiate a guardianship action.

Once the child files the guardianship action, the court will appoint an attorney for Mr. Smith. In a guardianship action, the court is being asked to declare that Mr. Smith  can no longer handle his affairs and that someone else (his child) has the authority to make decisions for him.  If the court decides this is the proper course of action, then the court is depriving Mr. Smith of fundamental rights—Mr. Smith can no longer make decisions for himself.

Since it is alleged that Mr. Smith can no longer make decisions for himself, the court must appoint an attorney for him to ensure that his fundamental rights are not inappropriately being taken away from him. That lawyer must advocate for Mr. Smith.  If Mr. Smith tells the attorney that he does not want a guardian, then the attorney must advocate for what Mr. Smith wants, unless what Mr. Smith wants is plainly harmful to Mr. Smith.

A guardian ad litem does not have the same role as the court appointed attorney. A guardian ad litem is appointed in some (not all) guardianship actions to opine as to what is in the best interests of the proposed ward, that is, Mr. Smith in my example.  Mr. Smith’s court appointed counsel might believe that Mr. Smith needs a guardian, but Mr. Smith might tell his attorney that he doesn’t want a guardian.  In such a case, the court could appoint a guardian ad litem to opine as to Mr. Smith’s need for a guardian.

Once the court declares that Mr. Smith is mentally incapacitated, the court could leave the guardian ad litem in place in order to accomplish some goal. The guardian ad litem could have a special skill from which the court believes Mr. Smith would benefit.  For instance, if Mr. Smith were being sued for an automobile accident in which he was involved, the court could appoint a guardian ad litem who is an attorney with extensive experience in litigation involving automobile accidents.

The court could empower the guardian ad litem to negotiate and enter an agreement disposing of the lawsuit against Mr. Smith. With such authority, the guardian ad litem could negotiate a settlement of the lawsuit against Mr. Smith and enter a settlement agreement disposing of the lawsuit.

A guardian ad litem is not appointed in most guardianship actions, but in some cases, the appointment of a guardian ad litem can be very beneficial. If a guardian ad litem is appointed, it is important to remember the differences between the court appointed counsel and the guardian ad litem, because even attorneys get their roles confused.

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