A guardian ad litem is a guardian that is appointed by a court to serve as a temporary guardian during the duration of a court proceeding. The phrase guardian “ad litem” translates from Latin to guardian “for the suit” in English.
There are two main instances where courts appoint a guardian ad litem.
One situation that involves the appointment of a guardian ad litem is a divorce proceeding involving minor children. In these cases, the court appoints a guardian ad litem to represent the best interest of the children throughout the divorce case.
In the elder law context, a guardian ad litem can be appointed in guardianship/conservatorship cases. In most states, the guardian ad litem is appointed to protect the interests of the potential ward. A ward, or protectee, is the person whose alleged loss of legal capacity has necessitated the guardianship/conservatorship filing.
A conservatorship involves management of a ward’s financial affairs, while a guardianship involves control of other legal rights. A guardianship/conservatorship can range from a narrowly defined granting of powers to a full guardianship/conservatorship where a guardian/conservator is granted full control and responsibility for the ward.
The guardian ad litem is tasked with meeting the potential ward and discussing the ramifications of the proceedings with the potential ward. The subsequent report of the guardian ad litem is one of many considerations that the judge takes into account when deciding whether or not a guardianship and/or conservatorship is appropriate. A guardian ad litem can also receive compensation for their time.
Missouri, however, uses a guardian ad litem for a different purpose. In Missouri, a guardian ad litem can be appointed to act as the guardian for the ward on an emergency and/or temporary basis while the guardianship case proceeds. In lieu of using a guardian ad litem to represent the views of a potential ward, Missouri courts appoint an attorney. This attorney then performs the duties that a guardian ad litem would typically perform in other states and also represents the potential ward in the guardianship hearing.
A guardian ad litem is an example of one of the many reasons why guardianship/conservatorship proceedings can involve a significant amount of time and money.
A guardianship/conservatorship can become necessary to manage the affairs of a person who has become incapacitated, but there are alternatives that can save families time and money. Powers of attorney can be used to appoint representatives in case of a potential incapacity without the time and expense of a guardianship case.
The catch is that the powers of attorney have to be in place before the incapacity occurs. Powers of attorney should also be drafted by an experienced elder law attorney to fit a specific client’s needs and wishes. Otherwise, a more generic power of attorney form may either not be valid at all, or lack the specific powers to manage a person’s specific situation.
To discuss a potential guardianship/conservatorship and other alternatives, please call Martha C. Brown & Associates at (314) 962-0186.