Guardians Ad Litem—what Are They and When Are They Necessary in a Family Law Case?

• Publication year: 2018
• Author: Rhoda A. Chandler

Guardians Ad Litem—What Are They and When Are They Necessary in a Family Law Case?

Rhoda A. Chandler

Rhoda A. Chandler, managing attorney for RC LAW, A.P.C., is a Certified Family Law Specialist and has been practicing law for close to 15 years. She also practices in the areas of estate planning, elder abuse, guardianships, and conservatorships, which have made her keenly aware of the complexity of the intersection of legal capacity and the law.

We are all familiar with the legal concept of "standing" to sue, the threshold requirement that a party must have a sufficient interest in the claim at issue in a lawsuit (a legal injury) to maintain the suit. A closely related concept, but a distinct one, is the legal requirement that a party must also have the "capacity" to sue. The policy behind the rules regarding capacity is that courts like finality in judgments. A judgment should be binding on the parties involved and resolve the litigation. While closely related, standing and capacity are procedurally very different. Lack of capacity is not a jurisdictional defect and must be properly raised or the objection may be waived.¹ Lack of standing, however, is not waived by failure to object; it can even be raised for the first time on appeal.²

Persons without legal capacity do not have the ability to bring or defend legal actions on their own. Some examples of parties lacking legal capacity to sue include minor children (who, with limited exceptions, are considered to lack legal decision-making ability and are deemed to need the protection of the state in legal cases), mentally ill persons, and persons adjudicated to be mentally incompetent, such as conservatees. There are, however, instances in which it is necessary for persons lacking capacity to be parties in legal cases. In such cases, the litigation may be conducted through a representative for the party such as a guardian or a conservator, or through a guardian ad litem ("GAL").³

While most of us are familiar with legal guardians— i.e., persons who temporarily stand in the shoes of a parent of a child during a period when a parent's rights are suspended—many of us are less familiar with guardians ad litem. "Ad litem" is Latin, meaning "for the suit." A GAL is a third party who acts as a person's representative to assist the person for the limited purpose of a lawsuit.⁴ A GAL acts on behalf of a litigant who lacks the mental capacity or competence to proceed on their own. The party appears through their GAL. Persons who lack the capacity to understand the legal proceedings or to be of assistance to their own attorney may also be represented by a conservator if one is already in place. A GAL, like a conservator, is not a party to the action, but merely the incapacitated party's representative. This is most closely analogous to a principal's agent under a limited power of attorney, the limitation being that the GAL is the party's "agent," so to speak, just for that particular litigation.⁵

Guardians ad litem do not "advocate" for the incapacitated party but are simply the incapacitated party's representative, attending hearings and signing court documents when the party cannot. Usually the party also has an attorney. A GAL may not appear "in pro per," as this is deemed to constitute the unauthorized...