What is a GAL – or Guardian ad Litem?
A Guardian ad Litem (GAL) is an individual appointed by the court to watch over a minor or incompetent adult throughout any ongoing open legal case. Guardian ad litem is generally appointed to a ward – a minor or incompetent adult – if they are unable to take care of him/herself. “A guardian ad litem is defined in Fla. Stat. § 744.102(10) as a person who is appointed by the court having jurisdiction of the guardianship, or by a court where a particular legal matter is pending, to represent a ward in that proceeding.” A GAL may be appointed by the court to represent the ward’s best interest during any probate or guardianship proceeding under Fla. Prob. R. 5.120 without the ward’s notice. Under the Florida statute, Fla. Prob. R. 5.120, a GAL may be appointed to represent the interests of a minor, incapacitated person, a person with legal or developmental disability, if the ward’s estate is to be ineffectively represented or if the ward’s appointed guardian obtains opposing interest.
Another situation in which a guardian ad litem may be appointed by the court to represent the ward’s best interest would be prior to the ward obtaining a settlement claim for personal injury, property damage, or wrongful death that exceeds $15,000. If the ward’s settlement claim equals or exceeds $50,000, it is mandatory according to the Florida statute, Fla. Stat. § 744.3021(1)(e), for the court to proceed with the process of appointing a GAL prior to the settlement agreement. The guardian ad litem may be appointed by the court without bond or notice. It is not mandatory for the court to appoint a guardian ad litem if the ward’s selected guardian does not obtain opposing interest for the ward – minor or incompetent adult. According to Florida statute, Fla. Stat. § 744.3025(2), the appointed guardian ad litem may be awarded by the court fees and costs from the proceeds of the settlement claim unless there is a waiver. The attorney fees awarded to a law firm may not be applied to the GAL’s fees in the settlement claim.
The guardian ad litem must file and serve a report to the court advising if the settlement claim would be in the best interest of the ward 5 days prior to the order authorizing the settlement. The report must include a statement of facts about the ward’s claim as well as the terms proposed in the settlement. The report must also include a list of any individuals that the guardian ad litem has interviewed or spoken with assessing the proposed settlement claim in addition to any documents that the guardian ad litem has reviewed. The GAL must also include their own evaluation or analysis of whether the proposed settlement claim would be in the best interest for the ward – minor or incapacitated adult.
Responsibilities and Duties of a GAL
The main responsibility or purpose of an appointed GAL is to serve as a representative for the best interest of a ward – a minor or incapacitated adult – during any legal matter. It is mandatory that the appointed GAL does not pose any conflict of interest with the ward’s family or the ward during their representation. Once the guardian ad litem’s report is filed – the judgment of the case must rule according to the guardian ad litem’s judgement for what would serve most beneficial to the ward’s interest. The judgement of the case would award the individual (ward) with any property or settlement claim without the need for any further action. The GAL’s investigation report does not need to satisfy the ward except to provide the best outcome for the case at hand in representing the ward’s best interest according to Florida statute, Fla. Stat. § 744.391.
Florida Probate Rule 5.180, states that the guardian ad litem obtains the right to waive the filings for formal and informal notices, service, in addition to the filing of any documents, exhibit, or schedule. The written waiver or consent must be signed by the individual executing the waiver or consent – or the natural guardian of the ward. This is executed to omit any conflict of interests that may arise throughout a case. Most legal cases where a GAL is appointed to represent the best interests of a minor or incapacitated adult are dissolution of marriages, modification, parental responsibilities, custody or visitation. In some cases, an attorney may be appointed as a guardian ad litem if it would be in the best interest for the ward.
Process for appointing a Guardian ad Litem (GAL)
The appointment of a GAL may often be needed in probate or guardianship proceedings to represent the estate of a decedent or a ward if there is no personal representative of the estate or guardian of the ward. Another common ground for the appointment of a guardian ad litem would be if the personal representative or guardian possess adverse interest to the estate or ward by enforcing their own debt or claim against the estate or ward. In such cases, the court may appoint an administrator ad litem or a GAL without bond or notice for the proceeding. The appointment of a guardian ad litem may occur if the court believes the it would best benefit the interest of an incapacitated person, an unborn or unascertained person, a minor, a person with legal or developmental disability, or an individual whose identity or address is unknown. A GAL may be appointed by the court to represent several individuals or several interests throughout a legal proceeding. The guardian ad litem must file an oath to discharge all duties responsibly and upon the filing be in charge for the representation of the ward or estate. The administrator or guardian ad litem does not need to be served except to follow the duties and demands directed by the court throughout the legal proceeding.
A petition must be filed for the appointment of a GAL in the legal case stating the petitioner’s information and belief for why a GAL must be appointed. The petition must include the ward’s initials and residence addresses, the name and address for the guardians – if any – appointed for the ward, the name and address of any living natural guardians of the ward(s), a description of the need for a GAL for the proceeding of the ward’s interest, as well as a listing of any facts for why a guardian ad litem would be necessary for the legal proceeding. Once a guardian ad litem is appointed by the court, the petitioner within 10 days shall serve copies of the petition order to any guardian of the ward, or natural living guardian who obtain custody of the ward – minor or incapacitated adult. The guardian ad litem must serve a copy of their report of their investigation throughout the legal proceeding as well as petition for compensation and discharge in addition to the notice of hearing on the petition to the ward’s guardian(s) or living natural guardian(s). The petitioner within 10 days after the appointment of a GAL must also serve copies of the petition for appointment and order to the attorneys recorded in representation for any beneficiaries or to each known beneficiary in the case. The court enforces the judgement or relief recovered by a guardian ad litem as other judgments and the execution shall be in favor of the GAL for the use of the estate or ward. The money collected shall also be paid to the personal representative or guardian unless ordered otherwise by the court. The guardian ad litem may be discharged of their responsibilities by the court once the final judgment is entered.
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As a reminder, the information provided on this blog article is only to be used for general informational purposes and not intended to be used as legal advice.
Justin serves as a member of the American Academy of Estate Planning Attorneys (AAEPA), a national organization comprised of legal professionals concentrating on estate planning. As a member of the Academy, he receives ongoing, comprehensive training on modern estate planning techniques.
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