July 28, 2015
Authored by: Luke Lantta
Guardians ad litem serve an important purpose. They are officers of the court appointed to look after the interests of those who cannot look after their own interests, such as minors or the incapacitated. Though they may be lawyers, they are not the lawyers for their wards. This distinction is meaningful.
In trust and estate disputes, a non-litigating estate planning lawyer often gets appointed as guardian ad litem for minor beneficiaries or the unborn, unknown descendants. That guardian ad litem also often makes a written report to the court. Those who have experienced them know that trust and estate disputes can be incredibly contentious. Is that guardian ad litem – who may have spent a career trying to avoid being in a courtroom – ready to get put on the witness stand?
Many guardians ad litem may say, “wait, I didn’t sign up to be cross-examined when I accepted this appointment!” In In re Estate of Thompson, however, the Georgia Court of Appeals made clear that when someone accepts appointment as guardian ad litem, they actually do sign up for cross-examination. That’s because, although the guardian ad litem may be a lawyer, he or she is not the lawyer for the ward. The ward’s lawyer is someone separate from the guardian ad litem. Guardians ad litem take a position, report it to the court, and they are open to cross by a party who wants to test that position.
So, before you accept appointment as a guardian ad litem, part of your due diligence should be figuring out just how contentious the case may actually be and then deciding whether you really want to open yourself up the possibility of testifying.