Both in elder law and estate planning you may see the term Guardian ad Litem used. But do you know what that term actually means?
A probate court handles not only issues of wills, estates and trusts, it also deals with the issues of incapacitated adults and minor children. They are considered vulnerable in the eyes of the Court, and may require the help of skilled legal representatives to ensure that their interests are protected in court proceedings. One option to represent the best interests of an incapacitated adult or a minor child is by the court appointment of a Guardian ad Litem.
A judge, family members, the court, or other professionals, such as a doctor or social service case worker, can nominate a qualified attorney to act as Guardian ad Litem for an incapacitated person or minor. The appointment of a Guardian ad Litem is at the discretion of the courts within that particular jurisdiction, such as a probate court in the case of a guardianship hearing.
People who have diminished capacity do not lose their right to due process of law; however, they may not be able to advocate for themselves, understand the process or have the capacity to determine what is in their best interest. The job of the Guardian ad Litem is to advocate for the best interest of the allegedly incapacitated person. Often they will be tasked with gathering all relevant information, interviewing the parties involved and advocating for the course of action that protects and promotes the best interest of the client.
There are estate planning tools that can be used to avoid the need for a Guardian ad Litem, such as drafting a Durable Power of Attorney that allows you to appoint a person to handle your affairs in the event you can no longer handle them on your own.
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