DECEMBER 23, 2002 VOLUME 10, NUMBER 25
When someone appearing in a court proceeding is unable to make decisions for himself or herself, the court may sometimes appoint a guardian ad litem. Lawyers usually shorten the appointee’s title to GAL. The need for a GAL and the GAL’s proper role have been topics of controversy in a number of cases.
Most jurisdictions draw a clear distinction between a GAL (who may or may not be a lawyer, depending on the court’s wishes and local laws and practice) and an attorney for the ward, minor or disabled person. Generally, the GAL’s role is to make decisions for the person. An attorney’s role, on the other hand, would be to represent the client, to counsel him or her, and to assist in producing witnesses and evidence if he or she wishes to take a particular position.
GALs are most often appointed in guardianship and conservatorship proceedings. In civil litigation involving a minor or disabled adult, or even in divorce proceedings where one spouse is mentally disabled, a GAL may be appointed to make decisions about the course of the case.
Because courts tend to be paternalistic toward children and the mentally disabled, the appointment of a GAL may be almost routine in many types of cases. As a recent California case pointed out, however, a judge needs to follow proper procedures even when taking steps to protect a litigant.
Kim S. is the grandmother of four-year-old Joann E. (the court does not provide last names in this juvenile proceeding) and her guardian. When the state decided that Kim’s mental illness made it impossible for her to properly raise Joann, a juvenile proceeding was initiated to remove Joann.
Because of Kim’s obvious mental illness, the juvenile judge decided to appoint a GAL to make decisions for her in connection with the juvenile proceedings. The appointment was made without a hearing, any testimony or an opportunity for Kim to be heard as to whether she needed a GAL.
After a different judge removed Joann from Kim’s care Kim appealed. One of her arguments was that the judge had no right to appoint a GAL without first holding a hearing and giving her a chance to object.
The California Court of Appeal agreed. Because it appeared that the judge simply decided, based on the written reports, that someone other than Kim should be in charge of her case, Kim’s due process rights were violated. Since Kim’s rights were abridged at the outset, the entire process thereafter was suspect, and the trial court must restart the juvenile proceedings. In re Joann E., December 16, 2002.