• Parse the Issues Involving Guardians in Legal Proceedings
  • July 20, 2017 | Authors: Michael Brophy; Dina Nam
  • Law Firm: Withers Bergman LLP - Los Angeles Office
  • 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.4 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.