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March 10, 2023

Who are the People in Your Guardianship Case?

Elizabeth Russo

The entire PDF in which this article appears can be found here. 

Many people (even attorneys) can be confused by the variety of terms and actors involved in guardianship cases.  In part, this is because some states may use entirely separate terms than other states. (For example, Britney Spears was subject to a conservatorship because she was in California, but in most other states she would have had a guardianship.)  However, it’s also because some of these terms can describe roles that are similar to others, especially depending on individual state practices.  This article seeks to explain some of the distinctions. 

Respondent’s Attorney- An attorney’s role is to zealously represent their client’s wishes.  If the client doesn’t want to be in a guardianship, then it’s the attorney’s job to advocate that position, even if they personally feel that a guardianship would be best for the client. Some states still have in their statutes that a respondent is not appointed an attorney, but a guardian ad litem.   However, this is not the same as the appointment of counsel (even if the person serving as guardian ad litem is an attorney).  By automatically appointing a guardian ad litem, these statutes indicate an assumption that the respondent is very incapacitated and unable to express their wishes.  

It is certainly not easy to represent someone with diminished capacity, however an individual’s right to make choices for themselves and have their position regarding a petition to take away many, if not all, of their civil rights deserves the full protection of the law.  There are times when a respondent’s attorney cannot make heads or tails of their client’s wishes.  In those cases, attorneys should consult their professional rules.  Model Rule of Professional Conduct 1.14 (and the state rules modeled on it) directs an attorney to maintain a normal client-lawyer relationship with their client to the extent possible.  According to this rule, an attorney may request a guardian ad litem if they feel the client is at risk of substantial harm and cannot appropriately act in their own interests.  The appointment of a guardian ad litem is allowed under The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA) but it states that the attorney and the guardian ad litem should not be the same person because of the conflict of interest between the “clients.”  However, there are some states that allow for the attorney to request permission to convert their appointment to that of a guardian ad litem in these instances.

Guardian ad litem- The concept of a guardian ad litem arose with that of “next friend.”  It is a legal construct to allow someone to bring claims on behalf of or defend someone (usually a minor) who cannot represent themselves in court.  Guardians ad litem may or may not be attorneys.  A guardian ad litem (or GAL) is not a legal substitute for the person in the way that a guardian is.  They represent the “interests” of the person before the court.  In fact, their “client” isn’t a person at all, but that person’s (best) interests.  While a guardian ad litem should consider someone’s wishes in determining what their best interests are, the GAL is not beholden to the wishes in the same way an attorney, or even a guardian, is.  It is always in a person’s best interest to receive due process of the law.  Each time a person’s due process rights are eroded in one proceeding, it makes it that much easier for it to happen to the next respondent in the next case.  Therefore, even if a GAL believes a guardianship should be ordered, they have a duty to ensure the respondent receives all the protections afforded them in the proceedings by the Constitution and their state’s statutes. 

Guardian- Guardians are different from guardians ad litem.  Guardians are decision-makers for an individual.  They legally stand in the place of the person in many, if not all, aspects of that person’s life.  While guardians are appointed because the court wants to protect a person, they have a co-occurring responsibility to ensure the respondent maximizes their independence within the confines of the guardianship.  To this end, the National Guardianship Association advises guardians to utilize supported decision-making to help the respondent make decisions and to make decisions for the individual using a substituted judgment standard (meaning they make decisions based on what the respondent would choose in that situation, not what they personally would do).  Only in cases when the respondent’s preferences are unknowable or would cause substantial harm is a guardian advised to make decisions using a best interest analysis.

Court Visitor- A court visitor (also known as a court investigator) is different than a guardian ad litem in that they do not represent anything or anyone.  Rather, their job is to investigate the facts alleged in the petition.  They are responsible for interviewing the respondent and explaining their rights to them. They act as the eyes and ears of the court.  At the conclusion of their report, visitors ultimately make a recommendation as to what they conclude is in the respondent’s best interests, but they are not advocates like a guardian ad litem.  It can be helpful to compare visitors to child custody investigators.  Without an independent third party, guardianship cases can turn into “he-said/she-said” debacles, or at their worst be shown to be power grabs.  Court Visitors play a vital role in helping the court identify the facts in a case and drilling down to what the true issues are.  Although visitor reports can be afforded a great deal of deference, at the end of the day, a judge can choose to go along with the recommendations or not.

Each of these roles function to uphold an important aspect of the overall due process protections that should be afforded a respondent in a successful guardianship system.  Even if your system does not have each of these actors, knowing and understanding the functions of how they can all act within a guardianship case can help ensure the pieces of the system that you do have work effectively. 

    Elizabeth Russo

    Senior Attorney ABA Commission on Law and Aging

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