By law, the Court must appoint an attorney to represent the proposed ward (the person over whom a guardianship is sought). Every guardianship involves taking substantial rights and powers away from an individual. Due process requires that the proposed ward be adequately represented. The attorney ad litem’s primary job is to advocate for the proposed ward. This means that they are to attempt to ascertain the proposed ward’s desires (i.e. whether the proposed ward opposes the guardianship and/or opposes the potential guardian). Sometimes this is easy to do, depending upon the proposed ward’s ability to communicate.
Although rare, there are guardianship cases where, because of the proposed ward’s level of mental acuity, the attorney ad litem becomes an active litigant. In this role, the attorney ad litem acts like any other “zealous advocate.” Unfortunately, these guardianships are the most expensive to establish. These “borderline” cases occur frequently in cases where the proposed ward suffers from a mental illness.
When the proposed ward is unable to communicate or cannot communicate meaningfully, the attorney ad litem’s job becomes not that of an active advocate, but of someone who protects their client’s rights by making sure the law is followed and all of the necessary evidence is properly presented to the court to justify establishing a guardianship.
The attorney ad litem’s fees are taxed as costs and generally paid out of the guardianship estate.