UK: Parse The Issues Involving Guardians In Legal Proceedings

Last Updated: 4 July 2017
Article by Lindsay Brown and Dina Nam

Between 2001 and 2010, the percentage of people in the U.S. over the age of 65 jumped from 12.4% of the population to 15.1% of the population. According to U.S. Census reports, that segment of the population is expected to expand rapidly in the coming years as the baby boomer generation continues to age.1 Making an even more dramatic projection, the U.S. Department of Health and Human Services Administration on Aging ("AoA") expects that by 2060, approximately 98 million Americans will be 65 or older, which is more than twice the number in 2014.2 As a consequence of the expected growth in America's aging population, health and mental wellness issues will be pressing concerns for these Americans and those assisting them.

One of the challenges facing the advocates for the aging population is determining what to do when health and mental wellness issues interfere or are alleged to interfere with a person's effective legal representation in legal proceedings. For a practitioner, it is important to understand, assess, and prepare to address these issues both for when they arise with clients and when they arise in the context of other interested parties in legal proceedings. This issue is particularly important in contested trust and estate proceedings, where issues of capacity and mental decline are routinely at issue.

As discussed below, it is important that practitioners understand what standards govern the guardianship decision and take steps to prepare to apply those standards in the proper manner. In some cases, the determination that a person is not capable of meaningfully participating in the legal proceeding is quite clear because of pronounced limitations or disabilities. But in other instances, an interested party's ability to understand and participate may be fluid, contested, or inconclusive. Furthermore, what should the practitioner do if he or she subjectively believes the client's capacity has diminished, but the client adamantly insists no guardian is needed because the client has the practitioner who is an excellent attorney?

In short, the practitioner must do the necessary homework regarding the facts and the law to know prior to finalizing a strategy what the courts might consider and how the framing of the issue might affect the chance of obtaining or defeating a motion to appoint a guardian ad litem.

Types of assistance for adults in judicial proceedings.  The first step is identifying the necessary level and type of assistance. New practitioners or lay persons sometimes confuse the need for counsel with the need for a guardian. For example, a person may find it impossible to discuss his or her legal rights or understand the details of a legal proceeding due to a variety of factors, including education level, cultural influences, language skills, learning disabilities, phobias, concentration or processing difficulties, depression, physical disabilities, and even mental illness. Yet, most courts will view such a person with these challenges as not requiring a guardian if the individual has capable counsel and a baseline ability to communicate critical facts and desired outcomes. Depriving an adult of the ultimate say in his or her own affairs is reserved for situations where an attorney is unable to get the necessary client feedback or decisions necessary to fulfill ethical obligations as counsel.

Conservatorship or general guardianship. Jurisdictions may have some differences in nomenclature, but standard terms are used for the protectors of adults in judicial proceedings. The Adult Guardianship and Protective Proceedings Jurisdiction Act Summary explains this as follows:

States differ widely in their standard terminology for a person appointed by the court to handle another's personal and financial affairs. Under the Uniform Probate Code and in a majority of states, a "guardian" is appointed in a "guardianship proceeding" to make decisions regarding the person of a minor or an "incapacitated" adult; a "conservator" is appointed in a "protective proceeding" to manage the property of a "protected person." But in many states, only the term "guardian" is used, and the appointee is designated as either a guardian of the person or a guardian of the estate. In a few states, the terms guardian and conservator are both used but are given different meanings.3

New Jersey, for example, has limited guardianships, which may be akin to a guardian ad litem, and general guardianships, which may be similar to a conservatorship. The terms "conservatee," "conservator," and "general guardian" are well-known to trust and estate practitioners, and in most jurisdictions a conservator's duties and powers are typically defined by statute.5 For an adult, a conservator acts as substitute decision-maker in all or many aspects of life.

The essential question the court must answer prior to the appointment of a conservator or a general guardian is whether the adult is so incapacitated that he or she is unable to manage his or her affairs independently.6 As the removal of one's independence involves a significant loss of liberty, the appointment process requires an invasive inquiry into the adult's life to determine whether there truly has been a loss of the basic ability of the adult to manage his or her own affairs.7

Many states also reference the inability to resist undue influence as another factor that might justify the broader forms of guardianship for adults in judicial proceedings. For example, California's conservatorship law8 provides that a "conservator of the estate may be appointed for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence.... Substantial inability may not be proved solely by isolated incidents of negligence or improvidence."9 Under the California law, for example, it may become critical to understand both the laws regarding capacity and undue influence, and the intersection of the two, to assess whether a practitioner is likely to obtain an order granting the broader guardianship power.

Although the conservatorship or general guardianship procedure arguably provides the proposed ward with the most protection, it is not advisable in many scenarios, such as where the need for assistance is limited to a specific proceeding, where the adult in question has limited capacity and opposes a complete deprivation of independence, or where the practitioner represents a party who has no personal interest in the other private affairs of the adult in question. In those cases, the appointment of a guardian ad litem (discussed in the next section) may be better suited.

The appointment of a guardian ad litem in most jurisdictions is an easier, less expensive process. Also, the due process concerns are less pronounced when the decision-making abilities are removed for a limited time and purpose.10

Guardian ad litem (GAL). The terms "guardian" and "GAL" are not always defined by the applicable code sections referencing the terms.11 Statutes might also use or reference other terms to convey the same concept, such as "next friend"12 or "advocate.13 Some jurisdictions, such as Massachusetts, even have multiple types of GALs.14 Whether or not a jurisdiction provides a statutory definition, the concept of a GAL is commonly used in legal proceedings to address the narrower problem of protecting the rights of adults for a specific purpose, often because the adult is unable to or having difficulty with assisting counsel.

The difference between a conservator or general guardian and a GAL is described, for example, in Black's Law Dictionary.Black's Law Dictionary defines a "guardian" as "[o]ne who has the legal authority and duty to care for another's person or property, esp. because of the other's infancy, incapacity, or disability."

Black's Law Dictionary also points out that: "A general guardian is one who has the general care and control of the person and estate of a ward"; whereas a special guardian is one who has special or limited powers and duties with respect to a ward or the ward's estate. On the other hand, a GAL is defined as a guardian, usually a lawyer, "appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party" often to make recommendations to the court on behalf of such party.15

Therefore, the essential difference between a general guardian or conservator and a GAL is this: A general guardian or conservator is usually appointed to take care of the person or property of a minor or incompetent adult, not for the specific purpose of participating in a lawsuit. In contrast, a GAL is appointed specifically to prosecute or defend a suit, and may be appointed even if the minor, or adult, has a general guardian.16 A person with a court-appointed guardian is sometimes called a "ward."

Moreover, the court's inherent power to appoint a GAL is well recognized.17 In federal court, Federal Rule of Civil Procedure 17(c) provides that a "minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a [GAL] ... to protect a minor or incompetent person who is unrepresented in an action." Many states have adopted similar statutes based on the Federal Rule.18

For example, in New York, a court may appoint a GAL or special guardian for an infant or an "incompetent person," at any stage in any action or proceeding, when it appears to the court necessary for the proper protection of the rights and interests of such infant or incompetent person and fix the fees and compensation of such guardian, except when it is otherwise expressly provided by law.19 Similarly, the Colorado GAL statute provides that at any stage of the legal proceeding, the "court may appoint a guardian ad litem if the court determines that representation of the interest otherwise would be inadequate." In California, both the California Code of Civil Procedure and California Probate Code provide their own rules for the appointment of a GAL in civil and probate matters.20

Although many states require a GAL to be a licensed attorney, a GAL's role is different than that of an incapacitated person's lawyer. While the attorney is typically "responsible for providing legal representation that supports the wishes and position of the proposed ward or protected person," a GAL, on the other hand is to "provide an objective assessment of all circumstances surrounding the requested appointment and to advocate as to what the GAL determines to be in the best interest of the proposed ward or protected person."21 In addition, in certain jurisdictions some GALs may have statutory investigation and reporting duties, and additional background requirements.22

Similar sounding statutes may hold meaningful distinctions.23  Once the practitioner or opposing counsel has decided to request the appointment of a GAL for a party in a judicial proceeding, the next step is to identify which statute or statutes may apply and develop a plan for how to meet the specific standard. Unlike with minors where the appointment is often a bright-line test based solely on age, a capacity determination for an adult is much harder because it requires an individualized analysis. Further, depending on the level of deprivation of liberty, the court must also consider the due process rights of the adult.

A common mistake made by practitioners is to assume that all statutes regarding GALs are equal, or that a particular jurisdiction has only one statute that might potentially govern the analysis. To demonstrate the subtle differences, here are examples of some common words or phrases used in the statutes.

Incompetency or incapacitation. Many statutes authorize the appointment of a guardian ad litem where the adult is "incompetent" or "incapacitated."24 Even then, there is no one definition for incapacity. The Uniform Guardianship and Protective Proceedings Act defines an incapacitated adult as one who "is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."25 On the other hand, the National Guardianship Association defines an incapacitated adult as one who "lacks sufficient understanding or capacity to make or communicate responsible decisions."26

Diminished capacity. Some statutes or applicable court rules authorize the appointment of a GAL where the adult has "diminished capacity" such that the client's "capacity to make adequately considered decisions in connection with a representation is diminished."27 Here, unlike needing to prove someone is mentally incapacitated, the "diminished capacity" standard may permit the imposition of a GAL for someone who has diminished in a more limited fashion, such as in a manner that obstructs his or her understanding of his or her rights in a legal proceeding.

Under a disability or mentally disabled or impaired or afflicted. Other statutes authorize the appointment of a GAL where the adult is "under a disability" or "mentally disabled" or "impaired" or "afflicted."28 For example, in Virginia, a court may appoint a "competent attorney-at-law as guardian ad litem" if there is a defendant "under a disability."29 However, the phrase "under a disability" is not defined in the Virginia code. In jurisdictions that rely on clinical or medical terms, one is more likely to need to rely on admissible expert or medical testimony to meet the statutory standard for appointment.

Insanity or unsound mind. Still other types of statutes authorize the appointment of a GAL where the adult is "insane" or of "unsound mind." The term "insanity" may mean different things in the statutory and case law of different jurisdictions. It could fall into either a disability, clinical illness, or incapacity standard.30 For example, in West Virginia, although the statutory language uses the word "insane," cases look to the person's "nature, character and effect of one's acts, and to understand the subject matter of business transactions in which one is engaged."31

Ability to assist counsel. Some statutes using the terms above have been interpreted to mean the inability to assist counsel or to understand the legal proceedings.32 As discussed further below, in California, the courts consider the California Penal Code standard which focuses on the person's ability to effectively assist and understand counsel.

Example of the application of "mixed" standards. These examples show that different statutes may use different terms in considering the need for a GAL. What further complicates the landscape is that courts interpreting these terms have sometimes created additional nuances or tests. California statutes and courts provide a telling illustration of this point.

Probate courts in California have exclusive jurisdiction over trust matters, and concurrent jurisdiction over proceedings involving trustees and third parties.33 Therefore, it is common for civil claims to be heard along with probate claims.34 As there are parallel, but distinct, GAL appointment statutes in both the California Code of Civil Procedure and the Probate Code, however, it is not always clear which code section applies when civil and probate matters are being adjudicated in the same court.

On the one hand, the California Supreme Court has specifically held that the civil procedure code sections applicable to the appointment of a GAL do not apply to probate proceedings.35 The court recognized the possibility that if both the probate code and the civil procedure code were to apply, "it would be possible to have two representatives" in the same proceedings, "neither of whom would be subordinate to the other."36

Conversely, in a later case decided by the California Court of Appeals, the Estate of Corotto37 expressly provides that the California Probate Court has the power to appoint a GAL pursuant to the non-probate GAL provision in Code of Civil Procedure §§372-373.5. While the standards for appointment are articulated differently in the two statutes, there is no statutory distinction regarding what the GAL must do once appointed, so a court seems unlikely to appoint a "civil" GAL and a "probate" GAL in a mixed probate/civil case (such as a trust contest/elder abuse action).38

The analysis set forth by the California Court of Appeals in In re Sara D.39 is also an instructive case because it shows the divergent evidentiary standards courts may employ to determine when the appointment of a GAL for an adult is necessary. There, the court indicated the standard for determining incompetency on a motion for appointment of a GAL is set by either California Probate Code §1801 (regarding the appointment of a conservatorship) or California Penal Code §1367, yet did not state which one was controlling.40 Whereas the focus of the California Penal Code is on the adult's ability to assist counsel and make decisions with respect to the litigation at hand, the California Probate Code §1801 is much more expansive because it deals with the standard to appoint a representative to effectively care for the person or estate. The California example shows that a practitioner must takes steps in any jurisdiction to understand which statute or statutes might apply, and how those statutes have been interpreted.

As previously stated, unlike situations involving minors, the appropriateness of the appointment of a GAL for an adult is much more uncertain, especially when there had not been an official adjudication or determination of diminished capacity or incompetence. Moreover, this can be especially challenging if the adult's capacity is more of a shifting continuum, depending on the time of day, the identity of the speaker, or stress, as opposed to a constant state (i.e., being a minor). Courts have recognized that this "may be because most cases in which a GAL is appointed involve consensual appointments or situations in which a GAL is required as a matter of law; e.g., when a minor is a party to a lawsuit."41 To that end, the appointment process is a case-by-case approach that requires careful analysis of the facts in front of the court.

Preparing for the proceedings.  Once the practitioner has fully investigated the applicable legal requirements, the final step is to analyze and gather the necessary evidence to support or oppose the appointment. As is discussed above, depending on the jurisdiction, various different statutes may apply regarding the appointment of a GAL, which may overlap with the rules governing the appointment of a general guardian or conservator. And, in some cases, there may be multiple GAL statutes that need to be considered. Therefore, it is important to understand which rule or rules apply and then identify any potential conflict between all of the statutes. However, there are some general tips for a practitioner to consider, and traps to avoid, when crafting the GAL legal strategy.

Issues to consider when the parties have stipulated to the appointment of a guardian. In many cases, counsel in a matter will all agree that a GAL is necessary. If the consent of the adult can be obtained, very little evidence may be required before the court will make the appointment. That does not, however, mean that the court will automatically appoint one.

In light of the due process concerns, a practitioner needs to consider what is needed in the record to support the order. If a statute requires a finding of "incapacitation," for example, a court might require sworn testimony, medical records, or other admissible evidence to support a finding of "incapacitation." Other courts, however, may be satisfied with simply speaking with the proposed ward on the record and having the judge confirm that the witness either is unable to understand the proceedings or consents to and would benefit from a guardian. In considering a plan for obtaining a non-contested appointment of a GAL, the following items should be considered:

  • Choice of guardian. The obvious first inquiry is to ask what the proposed ward wants with respect to a guardian. In most cases, it is highly unlikely that a proposed ward would want a complete stranger handling important decisions in the litigation. The credentials of the proposed GAL may be limited in some states or in certain types of proceedings, such as jurisdictions where the GAL must be a licensed attorney.42 Be aware if there is any statutory priority for the appointment as there are in some states with the appointment of an executor or administrator of an estate. If there are no statutory restrictions on the identity of the GAL, the practitioner should, obviously, consider what the proposed ward wants and whether the parties can come to a consensus candidate who is willing to serve and will likely be acceptable to the reviewing court. Last, but not least, the practitioner should also consider whether the proposed GAL is truly disinterested and can act in the best interest of the proposed ward.43
  • Scope of guardianship. It is also important from the outset to define the scope of the guardianship. In many cases where the protected adult has some capacity to act independently, the parties will agree to stipulate to the imposition of a GAL only because it is appropriately limited. Be sure to look to see if the applicable jurisdiction has restrictions or provides guidance on the scope of the appointment. For example, the Washington state courts provide the scope of a GAL's duties are limited by the court.44 Specifically, a GAL must comply with the court's instructions as set out in the order appointing a GAL, and may not provide or require services beyond the scope of the court's instruction unless by motion and on adequate notice to the parties, a GAL obtains additional instruction, clarification, or expansion of the scope of such appointment.
  • Available medical evidence. Medical records, if available, are an obvious source of critical information. If the proposed ward has a history of mental illness, mental disability, or even physical disability, all of this information is most likely to be documented by a medical professional that a court is likely to find persuasive in its GAL appointment determination. However, because issues affecting capacity may be difficult to diagnose or otherwise may go undiagnosed because the proposed ward does not regularly see a doctor, the practitioner may need to consider requesting the client submit to a mental or medical examination. The practitioner may also want to consider if there have been prior court findings that may be relevant. A practitioner should take special care to consider the privacy interests of the protected person (including statutes that might require redaction or sealing of certain information) when determining what and how materials are submitted to the court to minimize unnecessary disclosure of private medical details in the public record when possible.
  • Other sworn testimony. Because no man is an island, other sources of critical information for the appointment of a guardian will be friends, family members, caregivers, and other counsel. Although the practitioner may speak with or meet the client often enough, these other people may have additional insight into the client's daily life and may be able to attest to changes in behavior that may convince a court a GAL is warranted. If the practitioner plans to offer testimony about his or her client, he or she should consider the privilege and ethical implications of any proposed testimony.
  • Consequences of an incapacity finding, if one is made. One other important consideration is whether there could be any adverse consequences to the client if there is a finding of incapacity and a GAL is appointed. For example, if there are adverse parties involved in the legal proceedings, could one party use the client's incapacity determination against the client to invalidate an existing contract? Moreover, because people may be more familiar with the concept of a conservator or a general guardian, clients may run the risk of an erroneous perception that the proposed ward of a GAL appointment is unable to do tasks on his or her own outside of the judicial proceedings. In other words, although the appointment of the GAL may appear to be limited to protecting the rights of the client with respect to that specific legal proceeding, the practitioner must think broadly to protect the client's rights beyond just the issues at hand.45 Regardless, the practitioner must counsel the client if there are any perceived risks associated with such an appointment.

Additional issues to consider when seeking a guardian ad litem. If consent is not obtained or if the party otherwise opposes such an appointment, courts will likely require more evidence or take additional steps to address due process concerns. If the applicable standard is incompetency or incapacity or mental disability, that standard may not be easily ascertained without sworn, admissible medical or other expert testimony. If the matter is time sensitive, the court may also impose a temporary GAL while permitting additional time for the party opposing the request to make his or her case that a GAL is not needed going forward.

In addition to the factors listed above, in creating a strategic plan to obtain an order appointing a GAL in a contested hearing (either by the proposed ward or by a third party), the following issues should also be considered:

  • Notice issues. Depending on the jurisdiction, there may be specific notice requirements, not only to the proposed ward but other interested persons as may be defined by statute.
  • Ancillary proceedings. The location of the proposed ward is also a consideration if he or she is not in the same state or jurisdiction as the litigation at hand.
  • Seek medical or mental health records. The practitioner should also consider seeking existing medical and mental health information. For example, in ongoing litigation a practitioner could subpoena updated medical records, particularly if capacity is already an issue in a trust contest or elder abuse matter. The attorney could also take the deposition of the proposed ward's treating physicians.
  • Create new evidence. If the attorney is friendly to or even representing the proposed ward, he or she could ask the adult to consent to a mental examination. If the proposed ward is unwilling to consent to a mental examination, in some jurisdictions there is a means to seek a court order compelling an examination.46 In other jurisdictions, a mental examination may be automatic once the issue of a GAL has been presented to the court.47
  • Sworn testimony. The practitioner should also consider whether he or she can obtain sworn testimony from friends and family providing examples of how the proposed ward is not able to protect his or her own interests in legal proceedings. Even though medical testimony is relevant, on its own it is not always conclusive and it may be difficult to obtain in jurisdictions that do not allow a forced mental examination. A practitioner seeking the appointment of a GAL should be prepared to address the argument that the proposed protected person has "good days and bad days," or "understands enough." The challenge of demonstrating that a person is incapacitated or afflicted to a sufficient degree to merit appointment may sometimes be addressed by providing declarations and sworn testimony from third parties (or non-privileged testimony from counsel) demonstrating the problem as opposed to simply offering conclusions or argument.
  • Understand the opposing party's position. Sometimes the party opposing the appointment is doing so because of a component of the request, such as the identity of the proposed guardian or the scope of the proposed guardianship, and is actually not opposed to the idea of providing the afflicted person assistance. It is worth exploring the concerns to see if they can be addressed, as it is typically easier to obtain an order appointing a guardian via a joint request or unopposed motion rather than seeking an appointment over the objections of a party.

Opposing a motion to appoint a guardian ad litem. If the practitioner is faced with a motion to appoint a GAL and believes it should be opposed, a few additional issues should be considered, above and beyond the points discussed in the two preceding sections.

  • Due process. Critically, the Fourteenth Amendment to the U.S. Constitution clearly guarantees that no state "deprive any person of life, liberty, or property, without due process of law."48 As courts have recognized, the appointment of a GAL for an adult presents very serious due process concerns and requires either the consent of the adult or notice and a hearing at which it is established that the adult does not understand the nature of the proceedings and cannot assist his or her counsel in the litigation.49 A key component of a practitioner's opposition strategy is to demonstrate how appointing a GAL will deprive the proposed protected person of his or her independence and liberty.
  • Testimony by the proposed ward. If appropriate, the court will likely find it compelling to hear directly from the proposed ward about why he or she does not want a GAL. Generally, at the hearing, the court or counsel must explain the purpose of a GAL, why counsel believes the appointment is necessary, and what authority the individual will cede to the GAL.50 In some states, the court may hold a hearing to appoint a GAL without any preliminary hearings or prior factual findings51 In other words, a court may initially determine an individual's lack of legal capacity to make decisions based on application for appointment and supporting declarations.52 The adult's advocate opposing appointment should insist, if appropriate, that the proposed ward be given an opportunity to respond. At a minimum, however, the court should make an inquiry sufficient to satisfy it that the person is, or is not, competent; i.e., whether the person understands the nature of the proceedings and can assist the attorney in protecting his or her rights and, the court's decision should be stated on the records.53 The failure to follow even these basic procedures can be considered a denial of the adult's due process rights.54
  • Oppose invasive discovery or examinations. For attorneys representing the proposed ward, a key method to thwart the unwanted imposition of a GAL is to prevent the requesting party from obtaining private information in the first place. If current capacity is not at issue in the current matter, or has not been put at issue by the proposed ward, in some jurisdictions the ward's attorney can defeat requests for medical examination and quash requests for medical records based on privacy grounds. For example, an advocate may argue that a proposed ward's current capacity (because that is all that can be determined at the time) is not relevant to the subject of the trust litigation (i.e., undue influence or lack of capacity) for past acts, and, therefore, a mere allegation regarding a need for a GAL is, by itself, insufficient grounds to invade the proposed ward's medical and personal privacy.Counsel's role in safeguarding the adult. The role of an attorney is first and foremost to be a client's advocate. It is no coincidence that guardians are sometimes referred to as "special advocates," similar to how attorneys are sometimes called advocates. Therefore, another method to defeat a motion for the appointment of a GAL is to note that the proposed ward already has an advocate who is seeking and working towards the client's best interests.

When client with diminished capacity does not want a guardian. An attorney's seeking the appointment of a GAL for a client (especially an elderly client where diminished capacity is of increasing concern) must be balanced with the attorney's ethical duty to the client. The ABA comments to the Model Rules note that "the normal client-lawyer relationship is based on the assumption that the client, when properly advised and assisted, is capable of making decisions about important matters."55 When the client suffers from diminished mental capacity, however, the rules also recognize that an ordinary attorney-client relationship is not possible. Even more, the Model Rules of Professional Conduct recognize that exigent circumstances may exist requiring the appointment of a general guardian.56

A practitioner representing a party with some capacity must, when possible, inform the client about the role of a GAL and discuss whether the client has a position on the imposition of a GAL. Once armed with the client's position and the attorney's own view on whether a GAL is necessary, if there is a conflict, the attorney should consult the relevant state's rules of professional conduct to make sure that he or she is representing matters to the court as an advocate in a manner consistent with his or her ethical duties.

Conclusion.  When dealing with clients where capacity may be of growing concern, it is important that the practitioner understand what the GAL process entails, and how it differs both from a conservatorship/general guardianship and from the standard role as attorney. A counselor for the adult with diminished capacity or cognitive difficulties needs to both understand the statutes at play and how to strategically and ethically address the rules and evidentiary standards.

A GAL represents a serious deprivation of liberty and should not be raised with the court without first understanding what the GAL process entails and how that will affect the person the process is meant to protect. Whether seeking an appointment or defending against one, the primary concern should be for the adult over which the appointment is sought to ensure not only that his or her due process rights are protected but that the client's wishes and wants are being addressed as well.

Footnotes

1 The term "baby boomers" generally refers to the demographic group born during the post-World War II era, namely the years between 1946 and 1964.

2 See here.

3 See here.

4 See N.J.S.A. 3B:12-24 and N.J.S.A. 3B:12-25.

5 See, e.g., Conn. Gen. Stat. § 45a-654 (appointment of a temporary conservator); Cal. Prob. Code §1801; Ga. Code Ann. §29-5-1 ("The court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property."); Kan. Stat. Ann. §9-3058; Mo. Rev. Stat. §475.050; W. Va. Code §44A-2-8 ("Any person who has sufficient capacity to form a preference may at any time nominate any individual or entity to serve as his or her guardian or conservator.").

6 See, e.g., Unif. Probate Code §5-401 (Rev. Art. V), 8(III) U.L.A. 83 (2013) (requiring that the court find the respondent "is unable to manage property and business affairs....").

7 The majority of states use terms like "incapacitated" or incompetent" to refer to individuals who, by reason or mental or physical deficiency, are unable to independently manage their affairs. See Demakis, "State Statutory Definitions of Civil Incompetency/Incapacity: Issues for Psychologists," 19 Psych. Pub. Pol. and L. 331 (August 2013) (providing a chart of the definitions of incompetency or incapacity in various state statutes).

8 Cal. Prob. Code §§1800 et seq.

9 Cal. Prob. Code §1801(b).

10 Although outside the scope of this article, conservatorship procedures are often quite involved and differ from state-to-state. Special care should be taken to understand the procedures, evidentiary standards, and evidence necessary to initiate and complete the process.

11 See e.g., Cal. Prob. Code §§29 and 30; see also Poaster v. Superior Court, 20 Cal. App. 4th 948 (1993); see also N.Y. Surr. Ct. Proc. Act Law §403 (discussing the appointment of a guardian ad litem, but providing no definition of the same).

12 See, e.g., Federal Rule of Civil Procedure 17(b) and Mass. Gen. L. Ch. 190B, §1-404.

13 See, e.g., Del. Code Ann. tit. 31, §3605; Fla. Stat. Ann. §393.12; Okla. Stat. tit. 30, §3-106.1; Ind. Code Ann. §31-15-6-5.

14 A guardian ad litem may be an investigator, evaluator, or a "next friend." See Elsen, "Guardian Ad Litem," chapter 10 of Family Law Advocacy for Low and Moderate Income Litigants, 2nd edition (MassLegal Services, 2008), available at here.

15 See also here.

16 See, e.g., J.W. v. Superior Court, 17 Cal. App. 4th 958 (1993).

17 See, e.g., In re Interest of A.M.K., 227 Neb. 888 (1988).

18 See, e.g., Ala. Sup. Ct. 17(d), Ariz. R. C. P. 17(i), Ark. R. Civ. P. 17, Cal. Code Civ. Proc. §372, Miss. R. Civ. P. 17(c), Or. R. Civ. P. 27(B).

19 See N.Y. Civ. Prac. Act §207.

20 Specifically,  372 of the Code of Civil Procedure provides that "[w]hen a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case." The manner of appointment is governed by Code of Civil Procedure §373. Whereas, the California Probate Code actually has three specific statutes that directly or indirectly address the Probate Court's authority to appoint a GAL in legal proceedings before it. The broadest enabling statute is Probate Code §1003.

21 See here.

22 See e.g., Wash. Rev. Code Ann. §11.88.090(5) (Listing the various duties required by a GAL, including certain investigation and reporting requirements).

23 There are also standards for the appointment of a guardian ad litem for minors in family court proceedings, which is beyond the scope of this article.

24 See, e.g., Ark. Code Ann. §28-65-101; Conn. Gen. Stat. §45a-132; Wash. Rev. Code Ann. §4.08.060; N.C. Gen. Stat. §35A-1217.

25, 26 Demakis, supra note 7.

27 See, e.g., Utah Rules of Prof'l Conduct Rule 1.14 (regarding representation of clients with "diminished capacity").

28 See, e.g., Va. Code Ann. §8.01-9; Ky. Rev. Stat. § 353.330; Colo. Rev. Stat. §19-1-111.

29 Va. Code Ann. §8.01-9.

30 See, e.g., N.D. Cent. Code §28-03-04; W. Va. Code §56-4-10.

31 See also Beckley Nat'l Bank v. Boone, 115 F.2d 513 (CA-4, 1940) (Interpreting the West Virginia statute, the court note that "[o]ld age, weakening of the memory and understanding, and occasional strange and eccentric acts are not of themselves sufficient evidence of incapacity. The test is the ability to know the nature, character and effect of one's acts, and to understand the subject matter of business transactions in which one is engaged.")

32 See, e.g., Cal. Penal Code §1367.

33, 34 Cal. Prob. Code §17000(b).

35, 36 See Carpenter v. Superior Court of San Joaquin County, 75 Cal. 596 (1888).

37 125 Cal. App. 2d 314 (1954).

38 It should be noted, however, that although the Estate of Corotto has not been specifically overturned in light of the enactment of Probate Code §1003, that case was decided prior to 1991, when Probate Code §1003 became effective. The Law Revision Commission comments to Probate Code §1003 also note that these Civil Procedure Code sections do not apply in probate proceedings, given that there is a specific Probate Code section dealing with the appointment of a guardian ad litem. See also Cal. Prob. Code §1000 (providing that the general rules of the Code of Civil Procedure do not apply when there is an applicable and specific Probate Code provision).

3987 Cal. App. 4th 661 .

40 Id. However, the standard under California Probate Code §1801, regarding the appointment of a conservator, is much more expansive.

41 In re Sara D., supra note 39.

42 Some states such as Florida, Pennsylvania, Colorado, and Wisconsin have very specific rules that in certain contests, such as proceedings involving children, the guardian ad litem must be an attorney licensed in that state. See, e.g., Wis. Stat. Ann. §757.48; 42 Pa. Cons. Stat. Ann. §6311.

43 See Tamara L.P. v. Dane County, 503 N.W.2d 333 (Wis. Ct. App. 1993) (the GAL shall function independently and in the "best interests" of the proposed ward or alleged incompetent).

44 "A guardian ad litem shall comply with the court's instructions as set out in the order appointing a guardian ad litem, and shall not provide or require services beyond the scope of the court's instruction unless by motion and on adequate notice to the parties, a guardian ad litem obtains additional instruction, clarification or expansion of the scope of such appointment." See here.

45 Interestingly, it should also be noted, that some states, such as New York, may not even make a capacity determination when appointing a GAL, but rather focus on the belief by the judge that the person cannot protect his or her own rights or interests. See New York Housing Courts GAL Litigant Brochure here.

46 See e.g., Cal. Civ. Proc. Code §2032.310; Tex. Prob. Code §687(b).

47 See e.g., Miss. Code Ann. §93-13-255.

48 U.S. Constitution, amend. XIV, section 1.

49, 50 See e.g., In re Jessica G., 93 Cal. App. 4th 1180 (2001). See, e.g., Briggs v. Briggs, 160 Cal. App. 2d 312 (1958) ("The statutes regarding appointment of guardians ad litem were enacted to protect minors and insane and incompetent persons-not to preclude them from their legal rights.").

51, 52 Sarracino v. Superior Court, 13 Cal. 3d 1 (1974).

53 See In re Jessica G., supra note 49. See also In re Sara D., supra note 39; In re Enrique G., 140 Cal. App. 4th 676 (2006).

54 See In re Enrique G., supra note 53.

This article was previously published in the July 2017 issue of Estate Planning (Thomson Reuters/Tax & Accounting).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Lindsay Brown
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.