Guardian Ad Litem vs. Attorney for the Ward

There remain serious misunderstandings over the differences between a guardian ad litem and an attorney representing the prospective ward.

The role of the guardian ad litem is poorly not defined under Indiana law, which states only that “the court shall appoint a guardian ad litem to represent the interests of the alleged incapacitated person…” I.C. 29-3-2-3. Does that mean that the guardian ad litem acts as the attorney for the alleged incapacitated person? If so, then is their charge to provide zealous advocacy of the alleged incapacitated person’s wishes, or is it to act in the “best interests” of that person? If you represent the petitioner, can the guardian ad litem contact your client without your permission or presence?

Again, practices in Indiana courts will vary in their approach to defining the role of the guardian ad litem. Most guardians ad litem will think of themselves as independent investigators for the court, making recommendations based upon that investigation. This practice seems more in line with the National Guardianship Association’s Ethics and Standards for Guardians definition of “guardian ad litem” as “[a] person appointed by the Court to make an impartial inquiry into a situation and report to the Court.”

And while it is true that most of the time the court appoints as guardian ad litem someone who happens to be an attorney (which I don’t think is required, nor necessarily advantageous), that doesn’t mean the guardian ad litem is therefore acting as attorney for the alleged incapacitated person. There’s a big difference between the two roles.

An attorney for the alleged ward has an ethical duty to zealously represent the interests of his or her client. If the prospective ward says, “I don’t want a guardianship,” then their attorney’s role is to advocate against a guardianship appointment.

On the other hand, a guardian ad litem’s role is to make recommendations to the court on what’s in the prospective ward’s best interests. If they do that job right, then they may conclude that a guardianship is necessary, despite what the prospective ward says.

An attorney serving in a guardian ad litem role is asking for trouble if they don’t make their role clear from the very beginning. They could be faced with disciplinary complaints filed by the prospective ward who thought that they were acting as their attorney, but making recommendations that run counter to the ward’s expressed wishes. Or they could face similar complaints by attorneys for the petitioner about possible ex parte communications with the judge, or attempts at ex parte communication with the petitioner.

If there haven’t been such disciplinary complaints in the past, you can bet there will be in the future given the likely rise in the numbers of guardianships. Trouble’s a’brewin, I tell ya!

About Sara McClammer

Sara McClammer, Founder & Team Leader at Scout Guardianship Services, is a Nationally Certified Guardian and is a partner at the law firm of Bennett & McClammer where her practice focuses on guardianship and elder law issues.

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