What Does a Guardian Ad Litem do During a Probate Court Case?

On Behalf of | Oct 7, 2020 | Probate |

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If you or a loved one is involved in a probate court case, you may have heard the term “guardian ad litem.” A guardian ad litem can play an essential part in a California probate case, and it’s important to understand their role. Therefore, you will need to know: What does a guardian ad litem do in a probate case?

What is a Guardian Ad Litem?

A guardian ad litem or GAL is appointed by a court to look out for another person’s best interests during a legal case. The Probate Code specifically provides for the appointment of guardian ad litems in probate cases.

When is a Guardian Ad Litem Appointed?

In California, the court may appoint a guardian ad litem when someone who is the subject of a case lacks the legal capacity to make decisions. The probate court can appoint a guardian ad litem on its own motion or at the request of a “personal representative, guardian, conservator, trustee, or other interested person.” The Probate Code allows for these appointments at any stage of the probate proceedings.

Who Can be Appointed a Guardian Ad Litem by a Probate Court?

The probate court can appoint a GAL for incapacitated persons, unborn persons, minors, persons whose identity or address is unknown, unascertained persons, or a class of persons who are not ascertained or not in being.

What if the Person Opposes Having a GAL?

If the person objects to having a guardian ad litem appointed on their behalf, the probate court will take certain steps to evaluate their mental capacity. California law begins this process with the presumption that “all persons have the capacity to make decisions and to be responsible for their acts and decisions.” If, after the person is evaluated, it’s determined that he or she needs a GAL, one will be appointed.

Does Someone with a Conservator Need a GAL?

Probate Code section 372 permits a conservator to represent the interest of a conservatee without having to appoint a GAL. However, the court can appoint a GAL for an adult who is under a conservatorship if needed.

What Will a GAL do During a Probate Court Case?

A guardian ad litem’s role will always be to look out for the best interest of the individual. Their actions can vary according to the type of case. For instance, if multiple relatives want to be named conservator of a person’s estate, the probate court may appoint a GAL. In this situation, the GAL’s role would be to safeguard the person’s financial interests during the case. A guardian ad litem could also be named when a beneficiary to a trust cannot be found. In that situation, the other beneficiaries may want to receive their distributions. The GAL could be appointed to ensure that the absent person’s interests are protected during the distribution. GALs can also be used in conservatorship cases to help determine if a conservatorship is in an individual’s best interests.

How Long Does a Guardian Ad Litem Serve?

Once appointed, a guardian ad litem will serve for the length of the case. In some instances, a GAL may withdraw or may be replaced. However, outside of these situations, the GAL will remain on the case for its entirety.

Is it Possible to Prevent the Appointment of a GAL?

In some circumstances, estate planning devices may be able to help prevent the need for a GAL. For instance, if you have a power of attorney for finances that allows a designated agent to manage your financial affairs if you become incapacitated, you may not require a GAL. Likewise, if your Advance Health Care Directive provides instructions to your providers and names a medical decisionmaker for you during incapacity, your loved ones will be able to manage care issues without involving a court.

At the Law Offices of Alice A. Salvo, we are experienced California estate planning and probate attorneys who can help you understand the guardian ad litem’s role and all other aspects of having a case in probate court. Please contact us online or by phone to set up a free consultation today. https://www.salvolaw.com/

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