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WHAT IS A GUARDIAN AD LITEM?
A guardian ad litem is an individual appointed by probate court before or during a proceeding. Responsibilities may include prosecuting an action on behalf of an individual, providing information to a respondent, conducting an investigation, and making a report and recommendation to the court.
Ad litem literally means "for the suit." A guardian ad litem does not have the usual powers of a guardian, e.g., the right to make medical treatment decisions for another.
MUST A GUARDIAN AD LITEM BE A LAWYER?
No. Some courts by custom use only lawyers; others may choose among lawyers, nurses, social workers, and community volunteers.
IF A LAWYER IS APPOINTED AS GUARDIAN AD LITEM, DOES HE OR SHE REPRESENT AN INDIVIDUAL AS A LAWYER?
No. In general, the role of guardian ad litem is to help determine the best interests of the individual, not to advocate for a position chosen by a client, as would a lawyer.
IN WHAT KINDS OF CASES MIGHT A GUARDIAN AD LITEM BE APPOINTED?
This booklet focuses on appointments in adult guardianship and conservatorship matters, for petitions brought under the Estates and Protected Individuals Code.
A guardian ad litem might also be appointed in cases involving minors, such as guardianship or settlement of personal injury claims; for individuals whose whereabouts are unknown; for a patient in a dispute concerning a durable power of attorney for health care; or in any other case the court deems it appropriate. MCL 700.1403(d).
WHY IS A GUARDIAN AD LITEM IMPORTANT IN ADULT GUARDIANSHIP CASES?
The petition commencing a guardianship or conservatorship proceeding may provide little information. There may be no medical evidence presented, or only a sketchy doctor's letter. The respondent is not required to attend the hearing, and unfortunately, often does not.
A guardian ad litem's report, be it written or oral, may be the primary evidence considered by the court in rendering a decision.
HOW COMPLICATED IS IT TO SERVE AS A GUARDIAN AD LITEM?
Each case is different. You should be aware serving as guardian ad litem can be a complicated, time-consuming, and frustrating task. It can also be quite a rewarding experience.
Realize there may be a multitude of sources of information, and you may receive widely divergent renditions of events and opinions on issues. It is important to keep an open mind, often reserving judgment until all evidence is in.
You also have an obligation to "call it as you see it," without tempering your recommendation for fear of displeasing the judge, the petitioner or others involved.
WHAT IS MY POTENTIAL LIABILITY FOR SERVING?
MCL 691.1407(6) provides, in part,
[a] guardian ad litem is immune from civil liability for injuries to persons or damages to property whenever he or she is acting within the scope of his or her authority as guardian ad litem.
A guardian ad litem may still be liable for gross negligence or intentional misconduct.
IN ADULT GUARDIANSHIP PROCEEDINGS, WHEN WILL THE COURT APPOINT A GUARDIAN AD LITEM?
The court will appoint a guardian ad litem for the respondent upon the filing of an initial petition, MCL 700.5303(2), and usually for an emergency petition. A guardian ad litem will not be appointed if the respondent already has a lawyer of his or her choice.
The court will appoint a guardian ad litem if an interested party other than the ward or protected individual seeks modification of an existing guardianship, including a change in the person serving as guardian, expansion of the guardian's powers, or termination of the guardianship. MCL 700.5310(4).
IN ADULT CONSERVATORSHIP PROCEEDINGS, WHEN WILL THE COURT APPOINT A GUARDIAN AD LITEM?
The court will appoint a guardian ad litem upon the filing of the initial petition seeking a conservatorship or protective order. MCL 700.5406(2).
IN WHAT OTHER CIRCUMSTANCES MIGHT THE COURT APPOINT A GUARDIAN AD LITEM?
The court may appoint a guardian ad litem if a guardian seeks instructions from the court, and may use a guardian ad litem to conduct a periodic review.
The court may appoint a guardian ad litem to review the annual account of a conservator, or if a conservator seeks approval for the sale of real estate or authority to create a trust.
HOW IS A GUARDIAN AD LITEM CHOSEN IN A PARTICULAR CASE?
The probate court maintains a list of individuals who would like to serve as guardian ad litem. Court personnel choose from among the list, trying to spread appointments around fairly and sometimes matching the expertise of the guardian ad litem with the cause of disability of the respondent. Individuals are contacted by telephone concerning a prospective appointment.
DOES THE PETITIONER HAVE A ROLE IN THE CHOICE OF GUARDIAN AD LITEM IN GUARDIANSHIP CASES?
No. State law prohibits the petitioner from nominating an individual to serve as guardian ad litem; the guardian ad litem must be neutral.
HOW CAN AN INDIVIDUAL GET ON THE PROBATE COURT LIST?
One must write to the probate court and include a resume.
IS THERE A MINIMUM OF EXPERIENCE REQUIRED?
No. An individual only needs the interest, sensitivity, and time to do a good job. The court does request an individual observe a few guardianship hearings before being appointed. Formal training is offered on an irregular basis, and is not a prerequisite to serving in most counties.
MUST I ACCEPT AN APPOINTMENT THAT IS OFFERED?
No. You might be engaged in a trial, otherwise too busy, or going on vacation.
Even if you have time available, you should not accept an appointment if you are related to or have a personal or professional relationship with the petitioner, the respondent, or any other interested party.
WILL DECLINING AN APPOINTMENT JEOPARDIZE MY CHANCES OF FUTURE APPOINTMENTS?
No. However, if you consistently decline appointments, the court may remove your name from the list.
HOW MUCH TIME WILL I HAVE TO COMPLETE MY DUTIES?
In non emergencies, hearings are scheduled for a date about three weeks from the date of petition. If you find you cannot perform your duties within that time frame, you may request an adjournment from the court.
If a petitioner feels there is an emergency, he or she may bring a petition for appointment of a temporary guardian or special conservator. A hearing can be scheduled within 24 hours, and as guardian ad litem, you have to complete your duties by the time of the hearing.
One of your responsibilities will be to determine if indeed an emergency exists.
WHAT IS AN EMERGENCY?
Circumstances must be viewed from the perspective of the respondent, not the needs of the petitioner. Generally in guardianship, emergencies are life or death situations. A hospital's desire to transfer a patient to a nursing home is almost never an emergency.
WHAT SHOULD I DO FIRST UPON BEING APPOINTED?
Thoroughly read the papers you are given. They will include a copy of the petition or petitions, the notice of hearing, and perhaps a doctor's statement.
WHAT USEFUL INFORMATION MIGHT I FIND IN THE PETITION?
By reviewing the petition, you can usually determine the age of the respondent, his or her present address, the name and relationship of the petitioner, and who, if anyone, is nominated to be guardian or conservator.
By law, the petition is to contain specific examples of recent conduct demonstrating the need for appointment of a guardian. MCL 700.5303(1). Unfortunately, such information is often lacking on the petition.
WHAT OTHER IMPORTANT INFORMATION SHOULD BE IN THE PETITION?
The petition should list the names and addresses of interested persons. Petitioners may fail to list addresses and might not understand the phrase "presumptive heirs." You may have to ask the petitioner or others for names, addresses, and telephone numbers.
Note the attorney general is an interest party if the respondent has no known presumptive heirs. The Veterans' Administration is an interested party if the respondent receives any VA benefits.
In a petition for appointment of a conservator or for a protective order, a government agency paying benefits to the respondent or before which an application for benefits is pending, is an interested person. MCL 700.5104(2).
MUST THE PETITION BE ACCOMPANIED BY A DOCTOR'S LETTER?
No. But there may be a letter, statement or report from a doctor.
Ideally, a doctor's statement will include a diagnosis, some history of the individual's condition, and an explanation how the condition interferes with the individual's ability to make informed decisions.
HOW MUCH WEIGHT SHOULD I GIVE A DOCTOR'S LETTER?
Be aware a report may not have been prepared with a guardianship proceeding in mind. Even if it were, the doctor may not understand the concept of legal incapacity, or may harbor stereotypic notions of older adults. Finally, doctors' statements often only state a conclusion or offer a diagnosis such as "dementia."
Remember, capacity is a legal not a medical concept. Beware of labels, and do not treat a doctor's letter as gospel.
WILL I ALWAYS RECEIVE A NOTICE OF HEARING?
It is the usual policy of the court to assign a hearing date and time upon a petition being filed. That information appears on the notice of hearing you receive.
IS IT MY DUTY TO SEND THE NOTICE OF HEARING TO INTERESTED PARTIES?
No. Sending notice to interested parties and personally delivering the notice of hearing to the respondent are responsibilities of the petitioner.
However, you may give a copy of the petition, explanation of rights, and notice of hearing to the respondent upon meeting with him or her.
WILL I RECEIVE A COPY OF THE ORDER APPOINTING ME?
Yes. Use this if anyone questions your authority to conduct the investigation.
MUST I VISIT THE PERSON?
Yes. MCL 700.5305(1).
SHOULD I CONDUCT THE VISIT BEFORE SPEAKING TO INTERESTED PERSONS?
It is often best to speak with the respondent first. Despite possible protestations, you have no obligation to first contact the petitioner or the petitioner's lawyer. You do not want your initial perceptions colored by the views of others.
If you do speak with the petitioner first, it can be useful to determine what triggered the petition. Sometimes, family members have been told by a doctor or social worker that guardianship must be sought.
WHEN SHOULD I VISIT?
It is best to arrange a visit as soon after appointment as practical.
SHOULD I CALL THE RESPONDENT IN ADVANCE?
Yes, particularly if the individual lives in a house or apartment.
In a hospital or nursing home, an individual may be difficult to reach by telephone. But if some time has passed since the date of the petition, it may be worthwhile to check whether the individual is still in the hospital or nursing home.
If you visit unannounced, recognize the possibility the individual will not be available to see you right then. He or she may be asleep or at a meal.
WHAT IF THE INDIVIDUAL REFUSES TO SEE ME?
If the individual will not agree to meet with you, e.g., will not answer the telephone or refuses to open the door, see if the petitioner or other person can help set up a meeting. If unsuccessful, report back to the court. If someone else blocks your access to the individual, report back to the court.
SHOULD I SEE THE INDIVIDUAL PRIVATELY?
Yes. First, it is an issue of dignity. Second, you want the individual to be as comfortable as possible in answering your questions, without fear the answers are offending anyone.
Interested persons may be hesitant to absent themselves from the meeting. Be respectful, but be firm.
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Last Updated 12-31-02
Send your comments, questions and suggestions to Phil Harter at 161
E Michigan Avenue, Battle Creek, Michigan 49014 or
e mail to pharter@calhouncountymi.gov