August 01, 2018 Defining the role of a guardian ad litem

Statutory Provisions For Guardians ad Litem

By Kelly Crowe, Intern & J.D. Candidate, George Mason University, Arlington, VA

The role of a guardian ad litem in a guardianship hearing is one that is difficult to define, as the statutory requirements for the position vary greatly from state to state. As guardianship becomes an increasingly important topic of national conversation, it’s important to know for whom a guardian ad litem is advocating and what their duties are within the proceeding.

Guardianships grant one person the power to make decisions for someone whom the court determines needs protection. These decisions may be medical or financial and can include things like where the person will live, what kind of care they will receive, and how this care will be paid for. Many guardians are friends or family of the adult subject to guardianship, although there are professional fiduciaries who take on the role, as well.

Adults subject to guardianship are in a vulnerable position. Guardianship can come with a loss of many rights—not only the autonomy that comes with making medical or financial decisions, but also a loss of fundamental rights such as the right to marry or to vote. It is therefore important that, during the guardianship process, the claims about the respondent* are investigated. This is where guardians ad litem and court visitors enter the situation.

Guardians ad litem and court visitors both have a unique role as they act as the eyes of the court during the guardianship proceeding, conducting interviews and compiling reports to present to the court. They are meant to speak to the ability of the respondent to make decisions for themselves, and to make recommendations to the court regarding the outcome of the hearing.

Specifically, guardians ad litem are typically attorneys and are able to inform the respondent about their rights during the guardianship proceeding. Court visitors, however, typically have a background in medicine or social work, and their statutory duties are geared more toward determining whether the basis for guardianship has been met by the petition. However, state requirements vary, and not all statutory provisions treat these positions in the same way.

Guardians ad litem are often required to be attorneys, which leads to confusion regarding their role—are they assigned to defend the respondent’s rights and wishes, or to act in the respondent’s best interests? Those are not always the same thing. How do court-appointed attorneys and guardians ad litem compare? Furthermore, how do guardians ad litem compare to court visitors?

This article is based on a state-by-state statutory search of provisions on guardians ad litem, compiled in a chart on the website of the Commission on Law and Aging. The article analyses the statutory findings, and aims to identify areas of continued confusion.

What is the difference between acting as a person’s attorney and acting as their guardian ad litem?

For the most part, state statutes draw a line between attorneys and guardians ad litem. Attorneys, whether they are personally obtained or court appointed, are there to zealously advocate for their clients’ wishes, whatever those wishes may be. The attorney’s view of the situation does not matter; they are there to represent their client. †

This differentiates an attorney from a guardian ad litem. A guardian ad litem is there to represent the respondent’s best interests. The “best interests” standard is an objective one, based more on what the respondent may need than what they may want. Guardians ad litem are the eyes of the court and will investigate the claims made in the petition for guardianship. If, at the end of their investigation, the guardian ad litem believes that the respondent will be best served by someone else making decisions, they will make that recommendation to the court.

When looking at the statutory duties given to guardians ad litem throughout all fifty states and the District of Columbia, the most common responsibilities include:

  • Advising the respondent of their rights (four states)
  • Interviewing the respondent prior to the hearing (12 states)
  •  Informing the respondent orally or in writing of the contents of the petition for guardianship (seven states)
  • Recommending whether the respondent should be represented by legal counsel in the proceeding (four states)
  • Investigating the respondent’s circumstances (five states) 
  • Eliciting the respondent’s position concerning the proceedings and the proposed guardian (three states)
  • Inquiring of such person’s physician, psychologist, care provider (three states)
  • Interviewing prospective guardian by telephone or in person (four states)
  • Advocating for the respondent’s best interest (five states) 
  • Compiling all information into a report for the court (nine states)

However, not all states include this level of detail. For example, Hawaii’s statute says “[t]he court shall state on the record the duties of the guardian ad litem and its reasons for appointment,” but gives no other guidance on what duties will be assigned. Nearly one-third of the states that allow or require guardians ad litem list no statutory duties for someone in that position. More than 20% of all states require that the court use a court visitor instead of a guardian ad litem; and 15% of all states do not require a guardian ad litem or a court visitor at all.

There are also five states that put guardians ad litem in a particularly difficult position, blurring the line between attorney and guardian ad litem. In Alabama, the statute says that unless the allegedly incapacitated person is represented by counsel, the court shall appoint an attorney, and that attorney may be granted the powers and duties of a guardian ad litem. Idaho, New Mexico, and South Carolina’s statutes all say that attorneys appointed to represent the respondent “shall have the … duties” of a guardian ad litem (emphasis added).

Delaware’s statute says that “the Court shall appoint” an attorney ad litem to “represent the adult person alleged to be disabled if such person is not otherwise represented by counsel, to receive notice on behalf of such person and to give actual notice to such person, explain his or her rights, and the nature of the proceeding.” These are typically duties assigned to a guardian ad litem, but the Delaware statute also calls for an impartial fact finder and says the attorney ad litem “shall represent the person alleged to be disabled as if engaged by such person.” To make the situation even more confusing, the statute also requires that the attorney ad litem file a report and recommendation with the Court. There is no statutory guidance as to what this recommendation should include. In most states, these reports and recommendations are typically about what is in the best interests of the respondent, but an attorney acting as if “engaged by such person” should advocate for their client’s wishes, which is not necessarily what is in that client’s best interest.

A literature search failed to uncover practice guides that adequately address how a guardian ad litem in this situation should act, although the search did not include a complete examination of court rules. It appears that guardian ad litem practice at least in some courts is at the discretion of the judge as to whether the attorney defends a client’s rights and wishes as an advocate or acts as an investigator for the court to determine what is in the client’s “best interest” — or some ill-defined mixture in between.

What are the differences between a guardian ad litem and a court visitor?

Some states require that the court appoint a visitor to speak to the respondent, rather than a guardian ad litem. There are a few subtle differences between these two roles. A court visitor is someone who typically has a background in medicine or social work, or who has the training that the court deems necessary.

Court visitors are not required to be attorneys, and therefore do not have the same conflict of interest that can exist for guardians ad litem. A court visitor is an officer of the court, there to investigate the allegations in the guardianship petition, and while they can ask the respondent their opinions, the court visitor does not have to take those opinions into account in their recommendation to the court.

Generally, a court visitor’s duties are similar to that of a guardian ad litem. Court visitors are to:

  • Interview the respondent in person (UGCOPAA & 11 states)
  •  Explain the proceedings to the respondent (UGCOPAA & four states)
  •  Look at the respondent’s current dwelling and any potential dwelling (UGCOPAA & nine states) 
  •  Get the respondent’s opinion on the prospective guardian (UGCOPAA & four states) 
  •  Interview the prospective guardian (UGCOPAA & 13 states)
  •  Obtain information from any physician who has treated/advised/assessed respondent (UGCOPAA & four states)
  •  File a report (13 states)

The biggest contrast is that a guardian ad litem is usually an attorney, and is therefore better able to explain the respondent’s rights to them, as well as address the applicable law and answer any legal questions the respondent may have. Also, although included in a few states’ statutes for court visitors, more often are guardians ad litem tasked with recommending to the court whether the respondent should be represented by legal counsel during the proceeding. Court visitors, however, may be better able to address the psychological, medical, financial, and social issues that can come up during a guardianship hearing.

Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act

In 2017, the Uniform Law Commission approved a new model law for guardianship called the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA), replacing the Uniform Guardianship and Protective Proceedings Act (UGPPA) from 1997. It was drafted with extensive input from judges, attorneys, state legislators, and a broad spectrum of advocates for guardianship reform. The new model stresses the use of a court visitor, although it does say that a guardian ad litem can be appointed, as well.

Section 115 of the UGCOPAA explains that guardians ad litem can be appointed at any stage of a proceeding. It also includes a new statement that would help to clarify the role of a guardian ad litem in a guardianship hearing. The Act states the guardian ad litem “may not be the same individual as the attorney representing the respondent.” This helps to draw a distinct line between attorney and guardian ad litem.

Under the UGCOPAA, an attorney’s role is clear: attorneys are to advocate for the respondent’s wishes. If the respon­dent’s wishes are not ascertainable, then the attorney should advocate for the least restrictive form of care.

UGCOPAA requires that a court visitor be appointed to every guardianship case brought before the court (as did the previous UGPPA). This person is required to have the training necessary to understand the needs and limitations in the case. The visitor must explain the proceedings to the respondent; determine the respondent’s views on their proposed guardian and the guardianship itself; interview the proposed guardian; inspect the respondent’s current home and any proposed one; determine whether the respondent is able to attend the hearing; and contact the respondent’s physicians as well as additional duties.

Once the visitor has completed these duties, they will file a report with the court. This report will also include “a summary of self care tasks that the respondent can manage without assistance or with existing supports,” UGCOPAA § 304(d)(2). The visitor must report on the respondent’s ability to manage with the assistance of suitable services, supported decision making, etc. The visitor should use this information to determine whether a guardianship is appropriate, or if there is a less restrictive alternative or protective arrangement that will serve the respondent’s needs.

Currently, only Maine has enacted the UGCOPAA. It was also introduced in New Mexico, although the state made significant changes.

Conclusion

Currently, there is a lot of gray area for guardians ad litem, court visitors, and attorneys in guardianship proceedings. Overlap between duties and a lack of statutory instruction can lead to confusion. When moving forward in a guardianship proceeding, it is important to clarify the function of each court-appointed position The next steps in clarifying these functions and understanding the line between these roles might be to examine case law and to conduct empirical research into how these professionals practice.

† Joan L. O’Sullivan, “Role of the Attorney for the Alleged Incapacitated Person,” 31 Stetson L. Rev. 687, 688 (2002).