What is a Guardian ad Litem?
A "guardian ad litem" represents a person who cannot represent herself (a minor or an incapacitated person) when that person is involved in a legal action. California Rule of Court 7.1101 a) requires that, "Unless the court orders otherwise, a guardian ad litem must be appointed for any minor, guardian, conservatees, or other incapacitated adult who is a party to a civil action…who…is unrepresented by an attorney ad litem." The duty of a guardian ad litem is not an independent role; rather, the guardian ad litem is appointed to act in the interests of the protected person that the litigation relates to . California Rule of Court 7.1101 c) describes the responsibilities of the guardian ad litem when it states "[A]ll acts by the guardian ad litem, including all pleadings and other papers filed on behalf of the party, are binding on the party and are fully protected by immunity." Put another way, the guardian ad litem will have the duty to review pleadings, other papers, and evidence in the case, and will be responsible to making representations to the court on those issues. Without the appointment of a guardian ad litem to represent a minor, or an incapacitated person in a legal proceeding, the court cannot authorize said proceedings.
Requirements to be a Guardian ad Litem
In California, there are no specific professional or educational prerequisites to serve as either a guardian ad litem or ad litem. All that is required by statute is a willingness to make a commitment to the responsibilities of the position. According to CA Probate Code § 1480-1482, the following are eligible to serve as a guardian ad litem:
• Any adult who is not a party to the action or proceeding for which the guardian is appointed
• The parent or guardian of the minor
• A representative of a public or private nonprofit institution or agency having custody of the minor or alleged incapacitated person
• A conservator of the person of the minor or alleged incapacitated person
As guardians are generally not required to possess formal training or expertise in developing and overseeing legal strategies, guardians ad litem tend to draw on their preexisting academic and practical experience to frame their approach to each case. Many California attorneys find it to be an enlightening opportunity to observe the family law process from a different angle, whereas other professionals may see it as a way to expand their network and visibility, or simply to gain practical experience for the sake of their resumes. In other cases, the experience is borne out of a physical and psychological desire to protect the rights and interests of a vulnerable person, usually a child, with whom the guardian ad litem has a personal connection.
Upon Appointment
Both under Probate Code 1003 and California Family Code 3150 et seq., a guardian ad litem is appointed by the court after receiving a petition for such appointment. The petition may be brought by any party or can be brought by the Court on its own motion. The court is required, in making a decision as to whether a guardian ad litem should be appointed, to consider the best interests of the party for whom the appointment is sought. The decision is not based upon, however, whether there are disputed issues in the case, whether there is an undue influence or presumed undue influence or fraud. It is sufficient for the court to conclude that interests of the party for whom the appointment of the guardian ad litem is being sought requires the appointment.
The petition must state whether the party for whom the appointment of the guardian ad litem is sought is a minor or has been found to be incompetent. It must state whether either of those determinations have been made in any other action or proceeding. If the party is a minor, the petition must state whether the minor is the subject of a pending legal proceeding other than the one which the guardian ad litem is sought. If the minor is receiving at least $5,000.00 or more, the petition must state the name, address, and phone number of the insurer, the bank, or any other depository holding those funds as well as the name of the agency which holds money on behalf of the minor.
Guardian ad Litem’s Duties
Once appointed by the court, a guardian ad litem is subject to numerous duties and responsibilities, some of which must be carried out in the context of actual or potential litigation. For instance, a guardian ad litem is required by rule to consult with and report on their ward to the judge at all hearings relating to litigation in which the ward is involved, including guardianship actions. For all cases of more than $5,000, the guardian ad litem must provide the court a signed report that contains their evaluation of the merits of litigation, whether a compromise is appropriate, and the costs and benefits of such a compromise in relation to the expected recovery. Cal. Rules of Court, rule 7.951(c)(1). The guardian ad litem who filed a consent must also file an application for an order authorizing the specific acts and proceedings the guardian ad litem should take, whether it involves a compromise of the action, or other litigation, such as appeal. Id., rule 7.951(b)(3).
The duties of a guardian ad litem in cases involving more than $5,000 also requires him/her to act in the best interests of the ward. Cal. Rules of Court, rule 7.951(a)(7). Because the ward must be represented in litigation (either as a plaintiff or defendant), the guardian ad litem is required to act as a proxy in this capacity and be accountable to the court to act in the best interests of the ward. Id., rule 7.951(b)(5). The guardian ad litem must observe the same duties to the court as an attorney, and must be spoken to as one. Id., rule 7.951(b)(6). They must act in the best interests of the ward in the same manner as an attorney, and they are given powers equivalent to that of an attorney. Id., rule 7.951(b)(4). This includes the authority to hire and consult with experts, without the necessity of court approval. Id.
A guardian ad litem must also report to the probate court any proposed settlement or compromises that include a minor, like any other attorney representing a ward. Id., rule 7.951(c)(1). This report must include an approval from the parent, guardian, or custodial grandparent if possible. Id., rule 7.951(c)(2).
Guardians ad Litem’s Rights
The rights afforded to guardians ad litem in California are limited to those necessary to fulfill the court’s purpose in granting the guardian access to the ward and the information the court deems necessary to carry out its responsibilities. The extent to which a guardian ad litem may make decisions on behalf of the child is governed by statute. A guardian ad litem’s authority to act on behalf of the child applies equally to any proceedings in an administrative agency or in a court in which the issues of the rights, duties, privileges, and obligations of the guardian ad litem are being litigated .
A guardian ad litem who is appointed to act specifically for litigation or other legal proceedings must have the same powers to act for his or her ward as a guardian of the child or adult. The Guardian ad Litem also has the same rights as a parent to make certain decisions on behalf of the ward. The Superior Court may issue an order to manage the guardianship. For example, in case of a guardianship, an order can be made giving notice to other relatives of the child in which he or she has an interest. The guardian must have the approval of the court to move, create a trust, buy or sell property held in the ward’s name.
Challenges for Guardians ad Litem
Former or current allied professionals, often have the expertise to identify and rapport with children through methods that attorneys struggle to develop. However, a significant challenge for lawyers is that their primary expertise is in legal skills and the legal process, rather than the more psychological aspects of working with children.
While there is some cross-over between these sets of skills, there are many areas where they are not the same. Thus, if attorneys cannot be used as Guardians ad Litem, it is necessary to find those individuals who can truly function in the role. That means an ability to establish rapport quickly, deal with some of the more personal and more painful forms of conflict, handle court procedures, and research or work within the "system" when needed, such as child protective services, mental health treatment teams, etc. Fortunately, new standards have been established to ensure that Guardians ad Litem have the knowledge of the role to fulfill its requirements.
The biggest challenges for Guardians ad Litem involves identifying what they are doing. It is not uncommon that attorneys set out to do one task, and along the way other "problems" may arise. Those problems are not the reasons the Guardian was appointed and may distract from the specific role the Guardian has been assigned.
A challenge that is important to understand, is if the Guardian is doing something that is not their role. Unfortunately attorneys have not done a good job of explaining the difference between attorney representation and Guardians ad Litem. While Guardians are attorneys, they do not necessarily have the authority that comes with representation. A Guardian ad Litem who identifies a specific "problem" dealing with the child or family, may try to resolve that problem on their own without involving the attorneys for the parties. A Guardian ad Litem may attempt to deal with issues and develop solutions, that may or my not be appropriate. It is therefore essential that the client understands what the Guardian is doing and should be doing so that on the one hand a Guardian can be facilitated to do their job, and on the other hand the Guardian does not overstep a boundary and get ahead of the legal counsel representing the parties.
There is an element of remedy that is required in many attempted solutions to problems. However, this may not deal with the basis reason or issue behind the actions of the parties involved. A Guardian ad Litem may try to address one issue, but the actions of the child or party may be a symptom of another issue.
As there are role that are not defined, a Guardian ad Litem may not be clear if they are dealing with a resolution to the problems raised. For example, if the child complains about the parent, the Guardian ad Litem may attempt a resolution, but if the actual issue is a broken heart from a divorce or marital separation, the process of fixing the child’s relationship with the parent may not resolve the issue, but simply distracts the Guardian and the attorneys.
Some of the judgment calls that guardians have to address are not purely legal, but involve the emotional interaction of the parties and the facts being dealt with. Issues such as the age of the child and decisions by the child that the attorneys may think are parent or attorney decisions. The very age of the child can enter into this. A seventeen year old may want to decide where they will live, while a seven-year-old may not yet be able to make the decision for themselves. This becomes an issue of parenting time, i.e. the child only spending time with the same parent. As part of this, many Guardians ad Litem are not given the same liberty as a counselor or psychologist in dealing with a child that is not interviewed in the presence of the parents or other family members. Many attorneys are not convinced that a child needs to be interviewed alone.
Finally, there is the role of the Guardian ad Litem as a legal officer of the court and the boundaries that apply between the Guardian and the litigants and the attorneys. Many issues involve dealing with the family law legal system, and the Guardian must strike the right balance between serving the court and serving the litigants. It is sometimes appropriate for a Guardian to try to move the case on in a way that streamlines it and keeps it from being prolonged. The decision where to intervene with attorneys and where to exclude attorneys can be a difficult one. But the power of the Guardian ad Litem may even apply to due process arguments to approach the judge without the attorneys present.
Becoming a Guardian ad Litem
The process for becoming a guardian ad litem in California begins with a petition. This petition may be filed by interested parties in the case with an accompanying declaration. The petition and declaration should be filed in the department responsible for all family law matters in that particular court. After filing the petition, the petitioner must then obtain a report from the investigator of the family court services division of the local court. Each locality sets its own policies concerning the filing and processing of a petition for the appointment of a guardian ad litem. Petitioner must then notify the guardian ad litem of the petition via U . S. registered mail. After the report and notice process has occurred, the hearing for appointment of guardian ad litem will be held. At the hearing, if necessary, the judge will take testimony and may allow each party to ask questions. If, after all testimony and arguments have been heard, the judge grants the petition to appoint the guardian ad litem, the order appointing the same will be sent via U.S. registered mail to each party. The State Bar of California provides various resources for finding information on judge applications. It lists the phone numbers, addresses, and email addresses for every county in California.
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