Attorneys ad Litem are appointed by our courts in a variety of cases, and for a variety of reasons. They represent unknown heirs, minors, and incapacitated individuals and often are used as a “utility outfielder” for courts that simply need an extra legal brain in the room. We encounter Attorneys ad Litem most frequently when they are appointed as the attorney for a proposed ward in a guardianship. In this part of our series on ethics for these appointed attorneys, we look a little closer at the role they so often play.
Every ad Litem’s primary concern should be advocating for their client. The Probate Code mandates the appointment and our courts expect these appointed attorneys to be more than window dressing. Our courts expect, as they should, that these attorneys will represent allegedly incapacitated people with all of the purposeful zeal that they would for any other client. Few things are more offensive in the courtroom than an Attorney ad Litem who assumes he or she is just along for the ride, and that guardianship is a foregone conclusion.
Many guardianship situations, however, bring stark anecdotal and factual evidence to the table. In many cases, the outcome is not only probable, but it is also likely a good result for the allegedly incapacitated client. What do our appointed lawyers do when the proposed ward fails to recognize this?
Every Attorney ad Litem has a list of past clients that have told them “I don’t want a guardian.” In many cases, a guardian (or similar alternative) is precisely what these clients actually need. Our obligation is to advocate for those clients like any other. Are we required to stand on the deck and play our violin as the Titanic sinks below us? Do we make every objection and pull out every legal maneuver we can think of to avoid a guardianship our client doesn’t want? Do we dare give anything less than our best for a client that may not even comprehend the protection that they’re fighting against?
These questions are not always so easily answered. Most probate judges, and most experienced ad Litems, would compare the job to being appointed as a criminal defense attorney. Steve King, Judge of Probate Court 1 in Tarrant County, may put it best. When the accused bank robber has the purple stains on his face from the money bag’s exploding dye pack and claims, “I didn’t do it,” is his counsel obligated to use every possible method to avoid conviction?
The Attorney ad Litem’s job, if nothing else, is to honor the fact that our legal system is built on burdens of proof. In guardianship cases, there is no presumption of incapacity. Our courts assume that every person before it has the capacity to lead their daily lives without intervention or assistance. The ad Litem’s job is to hold those seeking guardianship to the burden of proof that they must meet. We can do this ethically, zealously and responsibly without causing undue hardship or expense on our clients, the parties or the Court.