Appointment of “Next Friend” In Divorce Reversed on Appeal


It is a common problem facing lawyers and litigants. What can be done if one of the parties to a lawsuit is a minor, or an incapacitated adult? Who makes decisions about the litigation if one party lacks legal capacity to handle their own financial and personal decisions?

In many courts, the civil litigation rules permit appointment of a “guardian ad litem,” an “attorney ad litem” or a “next friend” to guide lawyers and the court itself on how to proceed. One problem with those rules, however, is that they seldom make clear how such a person is to be appointed, who would qualify or what authority they might have. A recent case in Texas illustrates the confusion.

Alejandro Saldarriaga filed for divorce from his wife Debra Ann in late 1999. Both spouses had lawyers, and the litigation proceeded for three years without resolution of child custody, child support or property division issues. Finally Debra Ann Saldarriaga’s attorney, Lin Zintsmaster, decided her client was mentally incompetent to complete the divorce.

Ms. Zintsmaster filed a motion asking for appointment of someone to make decisions about how to proceed with the divorce litigation. The judge appointed local attorney Jerry Jones to be Ms. Saldarriaga’s “next friend,” and to make decisions about how the divorce should be completed.

Mr. Jones, in turn, filed a petition for appointment as Ms. Saldarriaga’s guardian, and yet another lawyer was appointed to represent her in that proceeding. Meanwhile Mr. Jones went ahead and negotiated a resolution of the remaining child custody, child support and financial decisions in the divorce proceeding.

Ms. Saldarriaga’s doctor wrote that she was not incapacitated, and the guardianship proceeding was dismissed. Meanwhile, however, the divorce court accepted the settlement negotiated by her “next friend” Jerry Jones, and the divorce was finalized. Ms. Saldarriaga appealed, arguing that the court never had authority to appoint someone to take over handling her case.

The Texas Court of Appeals in Austin agreed, and set aside the negotiated settlement. The court noted that there is a mechanism for appointment of a guardian, and the procedure must be followed in order to protect the rights of people who are alleged to be incapacitated. Since the powers of a “next friend” look so much like the authority given to a guardian, said the judges, the procedures must be similar. The divorce court simply did not have authority to name someone to take over Ms. Saldarriaga’s case. Saldarriaga v. Saldarriaga, November 13, 2003.

Although Mr. Jones testified in the divorce proceeding about the difference between the titles “guardian ad litem,” “attorney ad litem” and “next friend,” there is no clear consensus among practitioners about the distinctions. A “guardian ad litem” is someone, not necessarily an attorney, appointed to be an incapacitated person’s “guardian” for the limited purpose of a pending legal proceeding. Most practitioners think that a “guardian ad litem” should counsel the attorney as to what would be in the client’s best interests, although many would argue that the proper role is to help figure out what the incapacitated client wants to accomplish, and whether those goals are reasonable. An “attorney ad litem,” a term not used in most jurisdictions, fulfills a similar function but is necessarily an attorney; the role implies that the “attorney ad litem” will argue for what is in the patient’s legal best interest, not just his or her personal best interest.

Finally, the “next friend”–the choice used by the divorce judge in the Saldarriaga case–is the least well-defined of all. Many states permit a lawsuit to be brought by a “next friend” (Arizona is one), but the term is usually used for litigation filed on behalf of minor children by their parents. As Debra Ann Saldarriaga’s case makes clear, neither it nor either of the other designations should be used as a substitute for a real court determination of the ability of a client to make his or her own legal decisions.

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