Guardians Ad Litem— Part 1 Serving Adults With Diminished Capacity in Domestic Relations Matters
| Publication year | 2022 |
| Pages | 30 |
FAMILY LAW
Serving Adults with Diminished Capacity in Domestic Relations Matters
BY ANN GUSHURST
This two-part article explores the role of guardians ad litem in domestic relations proceedings and offers guidance on working with clients who may need a guardian ad litem appointed for them.
This part 1 covers the history and duties of guardians ad litem.
This article is the first in a series of two that outlines the role of guardians ad litem (GALs) in serving adult litigants with diminished capacity.[1] It focuses on domestic relations matters with an emphasis on the 2007 case In re Marriage of Sorensen,[2] the first and only major Colorado decision to examine GAL appointments in the context of a dissolution of marriage. This part 1 covers the history and nature of the GAL role.
The Common Law Construct
GALs are a common law construct with a lengthy legal history that can be traced back to Roman law.[3] GALs existed in British common law as early as 1275[4] and were mentioned in Colorado jurisprudence as early as 1871.[5] In Colorado, common law doctrines have full force and effect until modified by legislation, either by a codification of the common law or by an outright repeal of the doctrine.[6] No Colorado statute has codified or modified the GAL common law as it applies to adults.
The concept of court-appointed guardians first arose in antiquity from a need to protect orphaned children, who were by definition incompetent and thus incapable of entering into contracts or managing their own affairs. The role of a general guardian evolved to allow appointment of GALs to assist the court in lawsuits involving children; technically, a GAL is a guardian whose appointment is limited to particular litigation ("ad litem" in English means "for the suit"). The first guardians were granted charge "of the person" but not the person's property,[7] although different types of guardianships were eventually created that merged control over both children and their property.[8]
The historical record reveals a general trend of confusion over GAL authority. One observer, referring to the guardianship of infants, observed that" [n] o part of the early English law was more disjointed and incomplete."[9] Yet the GAL role persisted, due to the pressing need to protect those involved in a legal action who were either incompetent or incapacitated.
Sometime later, this judicial method of protecting persons was extended to include others with legal disabilities, beginning first with unmarried women (who were, at law, legally incompetent until the latter half of the 19th century) and those who were limited by "old age, disease, and mental weakness."[10] The salient feature of early GAL appointments is that they were made for wards who had no legal capacity to manage their own affairs. "Ward" is used in this article to describe a person for whom a GAL has been appointed, while "allegedly incapacitated person" (AIP) refers to a person for whom a GAL appointment is contemplated.[11]
Historically, the grant of power to a guardian over a ward's property—which necessarily implies the ward's loss of that same power— was tempered in two ways. First, courts began imposing personal liability on GALs for costs and losses and holding them to high fiduciary standards that precluded self-dealing and fraud.[12] The evolving responsibility and concurrent liability developed into the modern law of fiduciary duty with simultaneous strict loyalty to those to whom the duty was owed. Second, GAL appointments ended when the ward attained the age of competency.
Appointment Authority
GALs are referred to in many Colorado statutes. [13] In domestic relations cases, they can be appointed (1) pursuant to CRS§ 15-14-115 (part of title 15, "Probate, Trusts and Fiduciaries"), which allows a court to appoint a GAL at "any stage of a proceeding" if it finds that "representation of the interest otherwise would be inadequate"; and (2) pursuant to CRCP 17(c), which authorizes the court to appoint GALs for "infants or incompetent persons."
CRS title 15 houses all Colorado statutes relating to the appointments of conservators, special conservators, guardians, and GALs for adults. The GAL section is very brief:
At any stage of a proceeding, a court may appoint a guardian ad litem if the court determines that representation of the interest otherwise would be inadequate. If not precluded by a conflict of interest, a guardian ad litem may be appointed to represent several individuals or interests. The court shall state on the record the duties of the guardian ad litem and its reasons for the appointment.[14]
Notably, this statute references "a" proceeding and does not limit GAL appointments proceedings under the Probate Code.
Courts also have jurisdiction to appoint GALs under CRCP Rule 17(c):
Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, or such representative fails to act, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person, provided, that in an action in rem it shall not be necessary to appoint a guardian ad litem for any unknown person who might be an infant or incompetent person.
In addition, a Chief Justice Directive covers GAL appointments and states: "A guardian ad litem may be appointed for an incompetent person who does not have a representative and who is a party to a civil suit, pursuant to C.R.C.P. Rule 17(c)."[15]
Neither the statute nor Rule 17(c) clearly describes the GAL's role, the standard of proof required to appoint a GAL, the type of impairment[16] required to sustain a GAL appointment, the GAL's potential powers and limits on such powers, the procedure to be followed for appointment, or any other procedural or substantive rules that would modify the common law regarding GAL appointments for adult[17] litigants. And the scope of CJD 04-05 is unclear because it appears to apply to all GAL appointments for "wards or impaired adults in any case," but its statutory authority section refers to appointments subject to state payment.[18] Therefore, domestic relations practitioners must rely on existing GAL case law (of which Sorensen features prominently) and general legal principles to guide them.
The Sorensen Case
The leading case on GALs is Sorensen, decided in 2007, which involved the dissolution of a 29-year marriage. During the Sorensen divorce, wife's attorneys began to suspect that their client was suffering from a psychological impairment that rendered her "incapable of making decisions regarding even minor financial matters."[19] After investigating what to do about this problem, wife's attorneys filed a motion[20] to appoint a GAL and advised the court that their client opposed the motion. Wife promptly fired her attorneys and hired successor counsel.
Wife's new counsel withdrew the GAL motion and represented to the court that wife was competent. The court denied the motion to appoint a GAL without a hearing, and the divorce proceeded. A partial settlement agreement was reduced to writing, and additional oral agreements were reached that were read into the record and adopted by the court. The court then ordered the attorneys to reduce the oral agreements to writing, but wife's attorneys were unable to do so.
Shortly thereafter, wife retained her third counsel, who filed a motion for a new trial and for relief from the agreements that had ostensibly been reached. This motion alleged that wife's mental illness had prevented her from understanding the proceedings and achieving a fair settlement. The motion included affidavits from a member of wife's domestic violence support group and her therapist, who stated that wife was not "capable of making legal decisions" and was "not legally competent to be entering into agreements" due to her "mental state."[21]
The court denied the second motion, and wife appealed. The Court of Appeals ruled that once a motion to appoint a GAL is filed, it cannot be denied without a hearing, so the trial court erred in denying the original GAL motion. The case was remanded for a hearing in the domestic relations matter to determine if wife had been incompetent at the time of the original permanent orders' hearing.[22]
From a practitioner's perspective, Sorensen presents logistical challenges. If the trial court had attempted to conduct a hearing on the original motion, it is unclear how that could have resolved the matter, given the facts of the case. Wife had summarily dismissed the attorney who filed the first motion, and her successor attorney did not think she was compromised and immediately filed to withdraw the motion. Wife obviously did not support the motion, and it seems highly unlikely that a court would force litigants in this type of situation to produce evidence against their own perceived interests. Moreover, husband was hoping to settle the case, so presumably he had no incentive to produce evidence of wife's diminished capacity, and it is...
To continue reading
Request your trial