Attorney ad Litem Ethics in Guardianships – Part 3

In earlier posts, we took a deeper look into some of the ethical perils that await Attorneys ad Litem in a guardianship.  How hard should they fight for their allegedly incapacitated client when factual and anecdotal evidence seem to support the need for a guardianship?  Knowing that there are no “one-size-fits-all” answers to questions like this, we conclude that our obligations as attorneys must reconcile with reality.  We must diligently and ethically draw the burden of proof in the sand and make the applicant meet it with their evidence.  Our allegedly incapacitated clients don’t just deserve this.  They require it.

In this post, we turn our attention to some of the more practical details of an ad litem’s job that call upon our ethical compass.  What do these appointed attorneys actually do in a guardianship proceeding?  In this post, we’ll look at the first couple of steps in the appointee’s job.

First, the Court typically contacts the attorney in advance of the appointment.  Judges will want to know if the attorney that they have in mind has any potential conflict of interest in representing the proposed ward.  Next, the attorney receives notice of their appointment from the Court.  The ad litem might only receive the Order of appointment, or might receive pleadings, citations and other documents already in the Court’s file.

The Order of appointment is the source of the ad litem’s authority to do anything, and it should be clear, direct and as comprehensive as the circumstances require.  One of the most important things that the Order will do is authorize the ad litem to request and review pertinent medical records related to their client.  Good orders reference medical privacy and disclosure laws like HIPAA specifically.  Thus, health care providers can faithfully provide the ad litem with information that may be necessary or helpful when responding to the guardianship application.

Every ad litem’s job should begin with announcing their representation and investigating the alleged facts to verify and check them against the real facts.  By filing an Answer or General Denial on behalf of the proposed ward, the ad litem announces his or her representation and places the allegations in the guardianship application at issue for proof at a hearing.  While this Answer may ultimately be amended, depending on whether the matter becomes legitimately contested, every guardianship proceeding should include this step.  Oddly enough, filing an Answer in some courts can pose an ethical concern.

Some probate courts, in an effort to curtail time and expense, expect their ad litems not to file this responsive pleading.  Others outright encourage limited involvement and specifically instruct their ad litems not to file an Answer.  This occurs most often when a special needs minor is turning 18, and there appears to be no real dispute about the necessity for a guardianship.  As noble and resource-conscious as the idea is, this author thinks it’s a bad practice.  Answers and General Denials play a crucial role, even if it may only look like needless paperwork or theater in some cases.  When judges don’t expect them, or instruct attorneys not to file them, our system of jurisprudence erodes at a time when the most vulnerable individuals in our society need it to be there for them.